Terms and Conditions
To view the appropriate Terms and Conditions for conducting business with MMD Equipment, perform one of the following:
MITSUI MACHINERY DISTRIBUTION, INC.
TERMS AND CONDITIONS OF SALE
PLEASE READ ALL THESE TERMS AND CONDITIONS CAREFULLY. BY PLACING AN ORDER ONLINE OR OTHERWISE, BUYER AGREES TO BE LEGALLY BOUND BY THESE TERMS AND CONDITIONS.
1. General: Buyer recognizes that Seller cannot negotiate each sales contract individually and still provide competitive prices and efficient service, and accordingly Buyer must be willing to accept these terms and conditions. These Terms and Conditions as in effect on the date of shipment shall govern and form an integral part of all contracts for all sales of goods and services by Mitsui Machinery Distribution, Inc. and its subsidiaries and affiliates (collectively, "Seller"), whether regardless whether the contract is concluded on-line, via fax, via e-mail or paper purchase order. No terms and conditions in any request for proposal, request for quotation, purchase order or other communication of Buyer that are inconsistent with or in addition to these terms and conditions shall have any force or effect, except only to the extent Seller shall expressly so agree in a writing, signed by a senior executive officer, that refers specifically to these terms and conditions of sale and to the specific provision hereof that is to be varied or waived. Seller's performance of any contract is expressly made conditional on Buyer's agreement to these Terms and Conditions. Seller's commencement of performance or delivery shall not be deemed acceptance of any of Buyer's terms and conditions. This serves as a written objection to and rejection of all inconsistent or additional terms, conditions and limitations contained on any form or writing of Buyer. If these Terms and Conditions differ from the terms and conditions of Buyer's purchase order or other offer, these Terms and Conditions will be construed as a counteroffer and will not be effective as an acceptance of Buyer's terms and conditions which conflict herewith.Buyer's placing any order on-line or its acceptance or use of any product hereunder shall be deemed acceptance of these Terms and Conditions.Seller may accept or reject any Buyer order.Any use by Seller of any purchase order placed by Buyer shall be limited to the description of the goods, the quantity, Buyer's requested delivery date, and similar matters.
2. Payment: Payments are due within thirty (30) days from the invoice date unless otherwise provided on the invoice.Any invoice disputes not raised within ten (10) days from the invoice date are waived.Any failure by Buyer to make payment in accordance with the terms of this agreement or failure to comply with any provision hereof, shall constitute reasonable grounds for Seller to demand adequate assurance of due performance and until Seller receives such assurance Seller may suspend any performance for which Seller has not already received the agreed return.Without limitation of the foregoing and in addition to any other remedies available to Seller upon any such failure by Buyer, Seller may, at its option, cancel any unshipped portion of this order.Buyer to remain liable for all unpaid amounts.In the event Buyer fails to make payment in accordance with the terms of the agreement of the parties, the unpaid amount shall be deemed to be delinquent and the balance due shall bear interest at the maximum rate of interest permitted by applicable law until paid in full.Buyer agrees to pay all collection costs and expenses, including reasonable attorneys' fees, incurred by Seller in collecting or attempting to collect such amount.Fur purposes of the foregoing, it is hereby agreed that a reasonable attorneys' fee is no less than 20% of the purchase price of this order.Payment by the Buyer of the purchase price when due shall be a condition precedent to Buyer's right to assert any claim against Seller hereunder. Nothing contained in the foregoing shall preclude Seller's right to proceed by appropriate court action or actions, either at law or in equity, to enforce performance by Buyer of the applicable covenants and terms of this proposal.
3. Purchase Money Security Interest: Buyer hereby (a) grants to Seller a security interest in all products purchased hereunder and their proceeds until all payments are made in full; (b) authorizes Seller to execute and file appropriate UCC financing statements or other documents on Buyer's behalf to perfect Seller's security interest and (c) agrees to perform all acts necessary to protect Seller's interest. Seller shall be subrogated to all of Buyer's rights arising in the event of any payment or other satisfaction for damaged, lost or destroyed products.Buyer shall execute and deliver all instruments and take all other actions necessary to secure such rights.
4. Price Terms: Unless otherwise agreed to in writing, this proposal is quoted f.o.b. point of shipment and freight charges on all shipments and spotting, switching demurrage, or drayage are to be paid by Buyer. Any difference in the amount of freight from that shown on the face hereto as being included is for Buyer's account. Seller reserves the right to designate origin and intermediate carriers. If a specific delivering carrier is required, Buyer must designate such carrier in writing to Seller prior to shipment. Seller reserves the right to make partial shipments. Seller shall not be held responsible for loss or damage resulting from the means of delivery or routing used or for any other losses or damages arising while in transit; and the Buyer agrees to make any claim therefor directly against the carrier.
5. Delivery Dates: Seller will use reasonable diligence to comply with Buyer's requested shipping and delivery dates and to obtain similar commitments from the Seller's subcontractors and suppliers and Seller shall not be liable for any loss, damage, expense, or charge of any kind resulting from delays in shipment, delivery, or installation. Without limitation to the foregoing, and under no circumstances, shall Seller be liable for any failure or delay in shipment, delivery, or installation resulting from any cause beyond Seller's control, including, but not limited to, provisions of law or governmental regulations; accident, explosion, fire, windstorm, flood or other casualty; strike, lockout, or other labor difficulty; riot, war insurrection; shortage or inability to secure labor or other services, raw materials, production or transportation facilities; or for delays or failures by third parties to provide supplies, components, services, parts or equipment required by Seller to complete the contract. All shipping dates provided at any time by Seller are approximate and Seller shall not be liable in any way for failure to ship in accordance with any shipping date furnished by Seller.
6. Price Changes: Prices do not include extra costs incurred by Seller as a result of changes in wages or prices of any labor, services, materials or equipment required to complete and deliver the products and/or services covered hereby. All such extra costs shall be added to the quoted price and paid by Buyer. Prices do not include any present or future federal, state or local taxes based upon or measured by the sale, use, manufacture, or shipment of the products covered hereby. All such taxes shall be for Buyer's account and, if paid by the Seller, the Buyer agrees to reimburse the Seller on demand for the full amount thereof.
7. Title: Title to goods sold shall pass upon delivery to carrier at the point of shipment, irrespective of any freight allowance, prepayment of freight, or other designation to the contrary, and thereafter risk of loss or damage shall be upon Buyer.
8. Warranty: All products manufactured by Seller, except as hereinafter in this section set forth, are warranted to be free from defects in material and workmanship under normal use for the specific period designated herewith, or in lieu of such specific designation, for a period of one year from date of shipment for such products, provided the Buyer notifies Seller, in writing, of the defect in said product within said warranty period, and said product is found by Seller not to be in conformity with the aforesaid warranty. NOTWITHSTANDING THE FOREGOING, THE AFORESAID WARRANTY SHALL BE VOID AND UNENFORCEABLE AGAINST THE SELLER IF ANY STARTUP OF THE PRODUCTS IS NOT AUTHORIZED IN WRITING BY SELLER, OR IF REPAIRS, DISMANTLING, OR ALTERATIONS ARE MADE THERETO WITHOUT SELLER'S WRITTEN AUTHORIZATION. Where required in writing by Seller, defective products must be returned by Buyer to Seller at Seller's or the manufacturer's plant, transportation and other charges prepaid. The aforesaid warranty excludes any responsibility or liability of the Seller for:
a. Damage or defects due to accident, abuse, misuse, shipment, improper storage after shipment, improper installation or operation, improper maintenance or lubrication, including, without limiting the foregoing, failure of Buyer to follow such operating, maintenance, and lubrication guidelines as may be furnished by Seller or the manufacturer, abnormal conditions of temperature, moisture, abrasion or corrosion, or operation of any of the products or equipment or their components at loads and speeds exceeding those for which any such product or equipment or component was recommended;
b. The cost of dismantling, removing, transporting, storing, or insuring the defective equipment and the cost of re-installation; or
c. Defects in products manufactured by others and sold by the Seller hereunder, it being understood and agreed by the parties that the only warranty provided for such products shall be any warranty provided by the manufacturer thereof. As an accommodation to Buyer, Seller will assign to Buyer any rights it may have arising out of any warranties given to it by any manufacturer or such products or other standard equipment (such as controls, motors, gear reducing units, etc.)
ALL OTHER WARRANTIES ARE EXCLUDED, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE. THE SELLER SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES DIRECTLY OR INDIRECTLY ARISING OR RESULTING FROM THE BREACH OF ANY OF THE TERMS HEREOF OR FROM THE SALE , HANDLING, OR USE OF THE ABOVE DESCRIBED PRODUCTS. THE SELLER'S LIABILITY HEREUNDER, EITHER FOR A BREACH HEREOF OR FOR NEGLIGENCE, IS EXPRESSLY LIMITED AT THE OPTION OF SELLER: (A) TO THE REPLACEMENT AT THE AGREED POINT OF DELIVERY OF ANY PRODUCTS FOUND TO BE DEFECTIVE. (B) TO THE REPAIR OF SUCH PRODUCTS, OR (C) TO THE REFUND OR CREDITING TO BUYER OF THE PRICE OF SUCH PRODUCTS.
9. Cancellation: No order is subject to cancellation or to change unless agreed to in writing by an authorized officer of Seller. In the event of any cancellation, without limitation to other available remedies to Seller, the Buyer shall pay the Seller within thirty days of such cancellation the contract price, including applicable taxes, for all articles, materials, equipment and services which have been completed prior to cancellation plus all costs and other expenses incurred by Seller for uncompleted items (including without limitation engineering expenses and all commitments to its suppliers, subcontractors, and others) and a cancellation charge in an amount equal to 20% upon the total of the foregoing. In the event of any change, Seller shall be entitled to revise its prices and delivery schedules to reflect such change.
10. Shipping Instructions: The Buyer agrees to accept deliver of any part or all of the products upon completion of same and failure of the Buyer to furnish the Seller shipping instructions shall in no way alter the terms of payment of the Seller's invoice for any of the products offered for delivery.
11. Deferral of Delivery: Any deferred delivery request by Buyer shall be subject to Seller's written approval. Any approved deferred delivery will be subject to the following conditions. Seller shall have the right to render invoice for the completed portion of the order and to warehouse all completed articles, materials, products or equipment at Buyer's expense and risk of loss. On the uncompleted portion of the order, the Seller reserves the right at its option to either make a cancellation charge on the same conditions and terms of payment as outlined in section 8 hereof, or to revise its prices and delivery schedules on the uncompleted portion to reflect its increased costs, delays and expense.
12. Delays in Approvals: If the Seller is precluded from proceeding with production or otherwise delayed because of delays of awaiting approval or acceptance of designs, drawings, prints, engineering or technical data, or delays awaiting approval or acceptance of any of the products or services covered by this proposal or Buyer's purchase order, or otherwise, the Seller, in addition to, but not in limitation of any other available remedies, shall be entitled to an adjustment in price commensurate with any increase in the Seller's cost of production and any other losses and expenses incurred by Seller attributable to such delays.
13. Change Orders: Seller will not accept any charge for modification, servicing, adjustment or for any other item without written authorization by any officer of Seller issued in advance of doing such work.
14. Intellectual Property: In the event that any claim is made or action brought against the Buyer based on a claim that any apparatus or any part thereof sold hereunder constitutes an infringement of any U.S. copyright or Letter Patent, the Buyer shall notify Seller immediately thereof. Seller shall have the right, with the Buyer's assistance, if required, but at Seller's expense, to conduct settlement negotiations or any litigation. In the event said apparatus or any part is in such action held to be an infringement of any U.S. copyright or Letter Patent, and the use is enjoined or, if as a result of a settlement, Seller deems the continued use inadvisable, then provided that the Buyer has given Seller the immediate notice provided for above and has used the apparatus or parts only in accordance with the provisions of this contract and shall not have altered or changed them in any material way, Seller shall, at its option and expense, either procure for the Buyer the right to continue using said apparatus or part, or replace same and refund the purchase price less reasonable depreciation. The foregoing states Seller's entire liability for copyright or patent infringement.
15. Drawings: Seller is not obligated to supply detailed or shop working drawings or descriptions of its machinery, equipment, or processes. Foundation plans and general drawings and description necessary for erection may be obtained by Buyer from Seller, provided that all plans and drawings and written materials furnished by Seller are strictly confidential, are to remain the property of the Seller, are not to be disclosed or used by Buyer other than in the project for which this proposal is submitted without Seller's express written consent, and are to be returned to Seller upon demand.
16. Installation, etc.: All products herein specified shall be erected and started up by and at the expense of the Buyer or others than Seller. By separate agreement, Seller may provide erecting and/or startup personnel at Seller's standard published wage per diem rates to function as technical consultants in connection with the installation and erection of the products herein specified. In the event furnishing of such personnel is agreed to by Seller, the personnel will function only in an advisory capacity and shall have no responsibility for the supervision, or the quality or workmanship of such installation, erection or startup. The Buyer shall furnish at its own expense all necessary labor, supplies, and facilities required to erect and operate the products.
17. Personal Injury: Seller shall have no responsibility or liability for personal injury any machinery, equipment, apparatus, components, or parts furnished by Seller. Buyer agrees to indemnify and save Seller harmless from and against any liability, cost, loss, expense, or obligation incurred by Seller to any person or persons injured directly or indirectly in connection with the installation or operation of any such machinery, equipment, apparatus, components, or parts and caused by or resulting from Buyer's installation or operation of same, or caused by or resulting from any failure of Buyer or others to specify, or install, or provide devices or warnings to protect against or present personal injury in connection with the installation, operation, or other sue of any such machinery, equipment, apparatus, components, or parts by any person, whether or not such devices or warnings are required by law or governmental regulation.
18. Weights, Specifications, etc.: Any weights listed or quoted are approximate and are not guaranteed as being accurate. Specifications, plans, and instructions included in Seller's proposal are in accordance with directions furnished by Buyer and full responsibility for their correctness is assumed by Buyer.
a. Buyer may not assign this Agreement without Seller's prior written consent.
b. Waiver of any term or provision of this Agreement or of any breach of this Agreement or any term or provision hereof shall not be construed as a waiver of any other term or provision or of any other breach nor shall any such waiver be deemed or construed as a continuing waiver of any such term, provision, or breach. Any provision of this Agreement prohibited by applicable law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions hereof. The failure of Seller to require strict performance of any provision shall not diminish Seller's right thereafter to require strict performance of any provision.
c. There are no terms, understandings, or agreements between Buyer and Seller other than those stated herein, and all prior proposals and negotiations are merged herein. NO TERMS AND CONDITIONS IN ANY WAY ALTERING OR MODIFYING ANY PROVISION HEREOF SHALL BE BINDING UPON SELLER. THIS PROPOSAL EXPRESSLY LIMITS ACCEPTANCE TO ITS TERMS. NO MODIFICATION OR ALTERNATION OF ANY PROVISION HEREOF SHALL RESULT FROM SELLER'S ACKNOWLEDGEMENT OF BUYER'S PURCHASE ORDER, SHIPMENT OF MATERIAL, OR OTHER AFFIRMATIVE ACTION OF SELLER TOWARD PERFORMANCE UNDER THIS PROPOSAL FOLLOWING RECEIPT OF BUYER'S PURCHASE ORDER OR OTHER FORMS CONTAINING PROVISIONS, TERMS, OR CONDITIONS IN ADDITION TO OR IN CONFLICT OR INCONSISTENT WITH ANY PROVISION HEREOF.
THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY TO ALL SALES OF PRODUCTS AND SERVICES TO MITSUI MACHINERY DISTRIBUTION, INC. ANY VENDOR OR SELLER'S ACCEPTANCE OF ANY PURCHASE ORDER, SHIPMENT OF GOODS OR PROVISION OF SERVICES CONSTITUTES AN ASSENT TO THESE TERMS AND CONDITIONS
1. OFFER, ACCEPTANCE, AND MODIFICATION.
a. Each purchase order issued by Mitsui Machinery Distribution, Inc. ("Mitsui") is an offer to the named seller ("Seller") to enter into an agreement to buy certain goods, products (the "Products") or services (the "Services"). Acceptance is limited to, and every such agreement shall incorporate, the terms and conditions set forth in Mitsui's order, any attachments thereto expressly agreed to by Mitsui, these terms and conditions, and any other materials expressly referred to herein (collectively, the "Agreement").
b. Seller shall accept Mitsui's offer by indicating acceptance in writing, by filling the order or by performing the services requested by Mitsui. Any additional terms or conditions proposed by Seller, or any other changes hereto, shall be deemed a material alteration, to which Mitsui objects, and shall not become part of this Agreement unless expressly agreed to by Mitsui in writing.
a. The prices to be paid include all charges, and no extra charges of any kind shall be allowed. All prices include applicable Federal, state, and local taxes, assessments and duties, except for those for which an exemption may be claimed by Mitsui.
b. If during the term of this Agreement, Seller makes or offers to make sales of the same products or services to any third party, in similar quantities and of like quality as specified in this Agreement, at prices lower than the prices then in effect under this Agreement, Seller shall charge Mitsui such lower prices for all Products and Services.
3. DELIVERY SCHEDULE, RISK OF LOSS, TRANSPORTATION, AND PACKAGING.
a. All Products are sold to Mitsui "F.O.B. Destination - Freight Prepaid." Seller shall promptly advise Mitsui if Seller cannot make timely shipment. If Seller does not, or it appears that Seller will not, meet Mitsui's delivery or work schedule, Mitsui may, in addition to any other rights or remedies provided by law or this Agreement do any of the following:
i. terminate this Agreement, in whole or in part, without liability to Seller except for payment for Products already accepted or Services performed;
ii. agree upon a revised delivery or work schedule; or
iii. require that Seller ship via expedited routing. If Mitsui approves a revised delivery schedule or requires Seller to ship via expedited routing, any additional transportation cost incurred shall be paid by Seller.
b. All risk of loss, and liability from damage of Products or delay in delivery, shall remain with Seller until delivery to and acceptance by Mitsui. Notwithstanding the foregoing, if Mitsui transports Products, the risk of loss or liability shifts to Mitsui upon loading such Products into the vehicle Mitsui uses for such transport. Mitsui has the right to specify a carrier and the routing. Seller shall not charge extra for packing, cartage, drayage, storage or anything else. Seller shall enclose a packing slip showing the order number and quantity in each container or other receptacle. If not accompanied by a packing slip, Mitsui's count and weight shall be conclusive. Time is of the essence under this Agreement.
4. OVERSHIPMENTS; DELIVERIES IN ADVANCE OF SCHEDULE.
a. Overshipments exceeding five percent (5%) of the quantity of Products ordered by Mitsui or $25.00 in amount, whichever is less, may be accepted by Mitsui upon the terms and conditions set forth herein. Products which are delivered in advance of schedule without authorization from Mitsui may, at Mitsui's option be handled as follows:
i. returned to Seller at Seller's sole risk and expense;
ii. accepted by Mitsui with payment withheld by Mitsui until the date that the particular Products are actually scheduled for delivery; or
iii. placed in storage, at Seller's sole risk and expense, until the delivery date specified under Mitsui's delivery schedule.
5. PAYMENT TERMS AND SET-OFF.
a. Payment for Products or Services shall be as set forth in the Products and Price List. For purposes of determining Mitsui's eligibility to earn any prompt-payment discounts as specified in the Products and Price List, the period for which a discount may be earned shall be the date of delivery or accepted performance, or the receipt by Mitsui of a correct invoice, whichever is later. Mitsui shall be entitled to set-off any amount owing at any time from Seller, or any affiliated company of Seller, to Mitsui, or any affiliated company of Mitsui, against any amounts payable by Mitsui in connection with this Agreement. As used herein, "affiliated company" means any firm, corporation, partnership, limited partnership, joint venture, or association which controls, is controlled by, or is under common control with Seller or Mitsui, and shall specifically include any division, subsidiary, and any company or firm in which Mitsui or Seller own an interest.
6. NO SUBSTITUTION OF MATERIALS.
a. Regarding Products or Services, Seller shall not change the method of production, materials, equipment, processing, or production location, nor use any subcontractor, without Mitsui's express written consent.
a. Seller represents and warrants as follows:
i. that it is the sole owner of all Products, that it has the unrestricted right to convey marketable title free and clear of all liens, claims and encumbrances, and that no part of any Products will infringe any patent, copyright, trademark, trade secret or other intellectual property right of any third party;
ii. that the Products and Services will conform to this Agreement, to all representations made by Seller, and to any applicable description, specification, drawing or sample relating to such Products and Services;
iii. that the Products shall be merchantable, in good working condition and fit for the use intended by Mitsui, and all Products and Services shall be free of defects in design, material and workmanship; and
iv. that the Products shall be manufactured in accordance with good manufacturing practices, and that all Products and Services shall conform to and be furnished in accordance with all applicable Federal, state and local law, rules and regulations. Seller agrees that these warranties shall run to Mitsui, its successors, assigns, and customers, and the users of the Products. These warranties shall survive any delivery, inspection, testing, acceptance or payment by Mitsui under this Agreement, and the termination of this Agreement. Seller acknowledges that it is an expert in producing and supplying the Products and Services, and notwithstanding Mitsui's acceptance of specifications, samples, test data and the Products and/or Service, Seller agrees that Mitsui may rely on Seller as an expert.
8. INSPECTION, REJECTION AND RETURN OF PRODUCTS.
a. All Products and Services are subject to Mitsui's right of inspection and approval, notwithstanding prior payment therefore by Mitsui. Products may be inspected at Mitsui's destination or Seller's plant. Mitsui reserves the right, in addition to any other rights which it may have at law, at equity or under this Agreement, to reject and refuse acceptance of all or a portion of such Products or Services which are not, in Mitsui's discretion, in conformity with Seller's warranties. Seller agrees that time for acceptance or rejection of Products or Services shall not expire until Mitsui's uses the Products or Services. Mitsui shall have the right to return to Seller all or a portion of non-conforming Products or any item embodying the Services, at Seller's sole risk, expense, for full credit or refund, or require that Seller, at its sole risk and expense, correct or replace such Products or Services with conforming products or services within such time as Mitsui may require, provided, however, that such corrected or rejected Products or Services shall not be converted or replaced by Seller without written authorization from Mitsui. If Seller fails to correct or replace any nonconforming Products or Services promptly after notification and authorization from Mitsui, Mitsui may correct or replace such Products or Services and charge Seller for the cost incurred by Mitsui thereby, equitably adjust the order price for such Products or Services or set-off the cost hereunder, at the sole discretion of Mitsui. Any Products or Services corrected, replaced or repaired by Seller shall be subject to the warranties and other terms of this Agreement. In the event of rejection by Mitsui of all or a portion of Products or Services, Mitsui may charge to Seller and set-off against any payments due Seller all expense of unpacking, examining, repacking, storing and shipping any Products rejected. Payment for any Products or Services shall not be deemed acceptance thereof.
b. Mitsui's failure to inspect and accept or reject any Products or Services shall not relieve Seller from responsibility for Products which are not in conformance with this Agreement nor for latent defects in any Products, whether inspected or not, nor for fraud or gross mistakes. Nothing herein shall relieve Seller from the obligation to inspect and test the Products and Services in accordance with industry standards and Mitsui's reasonable requirements and specifications. Seller shall maintain inspection and test records pertaining to such Products and Services for a period of two (2) years after delivery of such Products and Services or as otherwise specified by Mitsui and copies thereof shall be made available to Mitsui upon advance request and without charge. Such records shall include the time the inspection and test occurred, the person who performed such inspection or tests, and all of the results there from.
9. TERMINATION AND REMEDIES.
a. Mitsui may terminate all or any part of this Agreement at any time by written notice to Seller if any of the following occurs:
i. Seller fails to observe or comply with any covenants, terms, conditions or warranties contained in this Agreement;
ii. Seller, in Mitsui's opinion, fails to make progress so as to endanger performance or shipment in accordance with this Agreement; or
iii. in the event of any proceeding by or against Seller in bankruptcy or insolvency, the appointment of a receiver or trustee, or an assignment for the benefit of creditors is made by Seller. Upon termination, Mitsui may produce or purchase or otherwise acquire the Products or Services elsewhere on such terms or in such manner as Mitsui may deem appropriate, and Seller shall be liable to Mitsui for any excess cost or other expenses incurred by Mitsui. In addition, Mitsui shall have all other rights and remedies provided by law, at equity and under this Agreement, and all of Mitsui's rights and remedies shall be cumulative and none shall be considered exclusive. Upon termination, Mitsui's only responsibility to Seller shall be the purchase price for the following: (x) Products previously made, delivered to, inspected and accepted by Mitsui in accordance with the terms of this Agreement; and (y) Services performed and accepted before the date of receipt by Seller of the termination notice.
10. INFRINGEMENT OF PROPRIETARY RIGHTS.
a. To the extent that the Products are not manufactured to detailed designs and specifications originated and furnished by Mitsui, Seller represents and warrants that the sale or use of such Products will not infringe any United States or foreign patent, copyright, trademark, industrial design right or other proprietary right. Seller shall indemnify, defend and hold Mitsui, its successors, assigns, shareholders, officers, directors, employees, agents, customers and those persons selling or using any of Mitsui's products and any affiliated company of Mitsui, its shareholders, officers, directors, employees, agents and customers (collectively the "Agents"), harmless from and against any damage, liability, claims, loss, costs, expenses and fees (including reasonable attorneys' fees)(the "Losses") which may be incurred on account of infringement or alleged infringement of any United States or foreign patent, copyright, trademark, industrial design right or other proprietary right by the Products or use of the Products. Mitsui shall have the right to employ counsel separate from counsel employed by Seller in any proceeding for which Mitsui may be indemnified by Seller and to participate in the defense thereof, but the expense of such counsel employed by Mitsui shall be borne by Mitsui unless Seller has failed to assume the defense of Mitsui or employee satisfactory counsel. Seller shall reimburse Mitsui on an on-going, periodic basis for all fees, costs and expenses incurred by Mitsui promptly after submission of statements of expenses of Mitsui during the pendency of any such proceeding. In addition to all other rights and remedies Mitsui has at law, at equity or under this Agreement, in the event Mitsui, its customers or anyone selling or using Mitsui's products are enjoined from the use, sale or other disposition of the Products, conditionally or otherwise, Seller shall, at no additional cost to Mitsui, repurchase the Products at the purchase price and/or Mitsui's products at their purchase price, and repay all costs of all shipments of such Products and products incurred by Mitsui.
11. COMPLIANCE WITH LAWS AND EQUAL OPPORTUNITY.
a. Seller shall comply with all applicable Federal, state and local laws, rules and regulations relating to the Products and Services, and if applicable, all such law applicable to government subcontractors, and shall furnish certificates of compliance whenever requested by Mitsui. Contract clauses required by the Government in such circumstances, and all rules and regulations promulgated under the specific acts cited, are incorporated into this Agreement by reference.
12. RECALL OF PRODUCTS.
a. If Seller becomes aware that any ingredient in the Products is or may become harmful to persons or property, or that the design or construction of the Products or Services is defective in any manner which is or may become harmful to persons or property, or if Seller otherwise breaches any of its warranties to Mitsui hereunder, Seller shall immediately give notice thereof, including all relevant information with respect thereto to Mitsui, and Seller shall indemnify, defend and hold Mitsui and its Agents, harmless from and against any and all Losses paid or incurred by them arising out of or relating or incidental to such Products or Services, including, without limitation, any costs associated with recalling products developed, manufactured, or created by Mitsui with the aid of such Products or Services. Mitsui may, at its option, be represented by and actively participate through its own counsel in action against the foregoing persons and entities. Should Mitsui, either voluntarily or involuntarily, initiate a recall of such Products, or if a government or agency shall take action with respect to them, Seller shall assist and cooperate with Mitsui in all respects with said recall, including, but not limited to, developing a recall strategy for the Products and working with Mitsui and any applicable governmental agency in monitoring Mitsui's recall operating and in preparing and furnishing such reports, records or other such information as is necessary in connection therewith, and Seller agrees to pay all costs associated with such recall.
a. Seller shall indemnify, defend and hold Mitsui and its Agents, harmless from and against any and all Losses arising out of or relating or incidental to any breach by Seller of the terms, covenants, warranties and conditions of this Agreement, or any act or failure to act by Seller or its agents, representatives or employees in the performance of this Agreement, including, but not limited to:
i. Death or injury to persons or damage to property, by whomsoever suffered, claimed to have resulted from any alleged defect in the Products or Services, or the performance by Seller of Services, or the work or performance of services by Seller's agents, representatives or employees, on the premises of Mitsui or one of its customers or suppliers, or from the failure of the Products to comply with any applicable sample or specification or with the express or implied warranties given by Seller, its agents, representatives or employees.
ii. Claims arising out of the alleged violation in the manufacture, processing, storage or sale of Products, or in the performance of Services, of any Federal, state or local law, statute, ordinance or administrative order, rule, regulation or standard.
a. Seller shall carry the following insurance with an insurance company or companies reasonably acceptable to Mitsui, and shall furnish promptly to Mitsui an insurance carrier certificate evidencing such coverage and naming Mitsui as an additional insured: workman's compensation insurance (including occupational disease) with statutory limits; employer's liability insurance with limits of $500,000, and public liability insurance with broad form endorsement (including products liability, completed operations, contractors liability and protective liability) and automobile liability insurance including non-owned automobile liability) each with limits for bodily injury of $500,000 per person and $1,000,000 per occurrence and for property damage of $1,000,000. Said certificate must set forth the amount of coverage, policy, number, date of expiration, and provide that Mitsui shall be given at least sixty (60) days' written notice prior to an expiration, termination, non-renewal or material change in coverage unless under any applicable laws of any state a shorter time period for notice is required, in which case such time period shall apply. If Seller is self-insured and registration with the state is required to evidence particular coverage, the certificate of the appropriate state agency of the state in which said work is to be performed must be furnished directly to Mitsui by such state agency.
15. ADVERTISING, NONDISCLOSURE OF CONTENTS OF AGREEMENT.
a. Seller shall not, without Mitsui's written consent, directly or indirectly, advertise, publicize, publish or otherwise disclose that Seller has a relationship with Mitsui, or disclose any of the details connected with this Agreement or the Products or Services to any third party unless required for the performance of its obligations hereunder. This section shall survive the termination of this Agreement.
16. CONFIDENTIAL INFORMATION; MITSUI'S PROPERTY.
a. Drawings, data, design, inventions, samples, order requirements and any other technical information supplied by Mitsui or prepared by Seller shall be the exclusive property and proprietary information of Mitsui and shall be held in confidence by Seller. Such information shall not be reproduced, used or disclosed to others by Seller without Mitsui's prior written consent, except as required for the performance of this Agreement and except to the extent that Seller is able to establish to Mitsui's satisfaction that such information (i) was known by Seller at the time of disclosure to it by Mitsui, (ii) became known to Seller after such disclosure to it by Mitsui through a third party as a matter of right and without restriction on disclosure, or (iii) is or has become generally known or available to the public through no act or failure to act on the part of the Seller. All such information including all reproductions shall be returned to Mitsui immediately upon demand, and otherwise upon completion or performance by Seller of this Agreement or its termination for any reason. The foregoing technical information shall be at all times labeled as confidential property of Mitsui and treated in a confidential matter by Seller, and Seller acknowledges and agrees that disclosure of this information would harm Mitsui. No reproductions thereof shall be retained by Seller except as authorized in writing by Mitsui. While the foregoing is in the possession of Seller, it shall be conspicuously labeled as the property of Mitsui, be kept segregated from all other property of Seller and be kept fully insured to Seller, at Seller's expense, in an amount equal to its replacement cost with a loss payable clause or endorsement in favor of Mitsui. This Section shall survive the termination of this Agreement.
17. FUTURE TAXES.
a. All taxes, assessments, duties or any charge or increase not in effect on the date of this Agreement which may, prior to the completion of deliveries of Products or performance of Services, be levied by any governmental agency on products, containers for Products or Services shall be the liability of Seller without recourse to Mitsui.
a. Mitsui reserves the right to make changes within the general scope of this Agreement, except as to price or quantity, by any reasonable means, and if requested by Seller, such changes shall be confirmed in writing by Mitsui. If any such change causes and increase or decrease in the cost of, or time required for, Seller's performance, the price therefore and/or time required for performance shall be equitably adjusted. Any claim for adjustment hereunder must be asserted in writing within thirty (30) days from the date the change is ordered. Failure on the part of either party to assert its claim within the time provided shall operate as a waiver thereof.
19. FORCE MAJEURE.
a. Mitsui reserves the right to defer any shipment under this Agreement, cancel or modify this Agreement or change any performance dates if Mitsui's production is delayed on account of strikes in Mitsui's plant or the plants of any of Mitsui's suppliers, fire, an act of God, labor disputes government order or regulation or other conditions beyond Mitsui's control. Seller shall not be liable for delays or defaults in delivery due to fire, an act of God, governmental order or other unforeseeable causes beyond its control and without its fault or negligence, provided that Seller notifies Mitsui immediately after Seller first knows of such delay.
20. GOVERNING LAW AND CONSENT TO JURISDICTION.
a. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, and Seller consents exclusively to the adjudication of any dispute arising out of this Agreement by any federal or state court of competent jurisdiction sitting is said jurisdiction.
a. This Agreement and any payment or performance due under it may not be assigned, transferred, sublet, subcontracted or delegated, in whole or in part, by Seller without the prior written consent of Mitsui. Mitsui may assign its rights under this Agreement to any of its affiliated companies at any time and this Agreement shall inure to the benefit to Mitsui, its successors and assigns. No act or failure to act of Mitsui shall constitute a waiver of any provision contained in this Agreement and to be valid a waiver of any requirement or obligation under this Agreement must be writing and signed by Mitsui. The section headings contained herein are not part of this Agreement, but are included solely for the convenience of the parties. The provisions of this Agreement are severable, and if any provision is held to be enforceable in the remaining provisions will continue in full force and effect. This Agreement sets forth the entire agreement of the parties with regard to the matters set forth herein and supersedes all prior agreements, understandings, and representations, whether written, oral or by action.
22. INDEPENDENT CONTRACTORS.
a. Nothing contained in this Agreement shall be construed as creating a partnership or joint venture between Mitsui and Seller, and Seller shall at all times during this Agreement be deemed to be an independent contractor. To the extent Seller's obligations under this Agreement require the performance of Services by Seller on the premises of Mitsui or any of Mitsui's customers. Seller agrees that such Services are to be rendered by Seller as an independent contractor and Seller shall comply with all of Mitsui's or said customer's safety rules and regulations and shall provide all safeguards and take all necessary precautions to prevent the occurrence of any injury to any person or property during the performance of such services.
a. Any notices, consents or approvals called for hereunder may be given by telephone, but shall be confirmed in writing to be sent by fax, overnight delivery service or certified mail, addressed to the address set forth Mitsui's purchase order and to Seller's most recent address as shown on Mitsui's records, as applicable. The address of either party may be changed by written notice to the other. Any notice will be deemed to have been received by a party the same date as sent if sent by fax, the next day if sent by overnight delivery service, or three (3) days from the date sent if sent by certified mail.