1. Contract. The terms and conditions set forth herein shall govern all sales of computer numerically controlled equipment, parts and peripherals (the "Product") described in this Sales Order Confirmation (this "Agreement') by Marubeni Citizen-Cincom, Inc. ("Seller" or "MCC"). Unless the buyer ("Buyer") of the Product from Seller accepts these terms, any offer to purchase the Product from Seller is hereby rejected. In accepting the following terms and conditions, Buyer agrees that any terms additional to or not identical with these terms and conditions will not become a part of a contract between Seller and Buyer.
Buyer's acceptance of these terms and condition must be evidenced by Buyer's signature in the space provided on the Sales Order Confirmation. No contract shall result from this order until Buyer's offer is accepted by Seller by Seller's signature thereon. After Seller's acceptance, this Order shall not be subject to cancellation by Buyer without Seller's prior written consent, and then only if Seller is indemnified to its satisfaction against any loss incurred thereby. Unless otherwise specifically agreed to in writing by the Seller, these terms and conditions shall govern all future sales by Seller to Buyer, likewise to the exclusion of any terms and conditions in addition to or not identical with the terms and conditions set forth herein. BUYER'S ATTENTION IS PARTICULARLY DIRECTED TO THE LIMITATION AND DISCLAIMER OF WARRANTIES SET FORTH IN SECTION 4 OF THESE TERMS AND CONDITIONS.
2. Delivery and Acceptance. Unless stated otherwise in Seller's offer to Buyer, delivery shall be made F.O.B. (named port of shipment), by Seller delivering the Product to a carrier for delivery to Buyer in accordance with the agreed delivery date of schedule indicated on the Sales Order Confirmation. Method and routes of shipment, unless specified by Buyer, shall be as specified by Seller. Acceptance of the Product shall be deemed to occur promptly upon Buyer's receipt of the Product unless Buyer immediately notifies Seller of any defect in the Product. Partial deliveries are hereby authorized.
3. Terms of Payment. Terms of payment will be in net 30 days after delivery, unless otherwise agreed by Seller and Buyer. Buyer shall pay interest on the unpaid balance of all bills after the due date thereof at six (6%) per annum or at a rate two percent (2%) higher than the base rate then charged by Citibank, NA, whichever is higher; provided however that if such interest rate shall be higher than that permitted by law, Buyer shall pay interest on the highest rate permitted by law.
4. Limited Warranty. Disclaimer of Warranties; Limitation of Liability; Pass-Through of Manufacturer's Warranties. SELLER WARRANTS THAT AT THE TIME OF SHIPMENT THE PRODUCT WAS FREE FROM SIGNIFICANT DEFECTS IN MATERIALS OR WORKMANSHIP, BASED UPON NORMAL USE. IN THE CASE OF NEW EQUIPMENT (CAPITAL GOODS EXCLUDING TOOLING), THE TERM OF THIS LIMITED WARRANTY SHALL BE TWO (2) YEARS FROM DATE OF DELIVERY. TOOLING FROM VENDORS OTHER THAN THE MAKER OF THE MACHINE TO WHICH THE ORDER RELATES IS SOLD ON AN "AS IS" AND ON A "WITH ALL FAULTS" BASIS WHICH MEANS THAT THERE IS NO WARRANTY ON TOOLING. THIS LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE. THIS LIMITED WARRANTY EXTENDS ONLY TO BUYER AND NOT TO ANY SUBSEQUENT PURCHASER OR TRANSFEREE OF THE PRODUCT. NO REPRESENTATIVE OF SELLER MAY ALTER OR AMEND THIS LIMITED WARRANTY. SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL LOSS, DAMAGE OR EXPENSE ARISING DIRECTLY OR INDIRECTLY FROM INSTALLATION OR USE OF THE PRODUCT OR FROM ANY BREACH OF WARRANTY. BUYER AND SELLER AGREE THAT THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY CONCERNING THE PRODUCT SHALL BE THE REPAIR OR REPLACEMENT OF DEFECTIVE PARTS OR, AT SELLER'S OPTION, REFUND OF THE PURCHASE PRICE. THIS WARRANTY SHALL IMMEDIATELY TERMINATE IF THE PRODUCT OR ANY PART THEREOF SHALL BE SUBJECTED TO ACCIDENT, ALTERATION, ABUSE OR MISUSE WHICH SHALL DIRECTLY OR INDIRECTLY CAUSE SUCH DEFECT.
5. Insolvency of Buyer. In case of the filing of a petition in bankruptcy by or against the Buyer, or the appointment of a receiver for Buyer, or the insolvency of Buyer, Seller may terminate this Agreement. Such termination shall not prejudice Seller's rights to retain any amounts already paid or to recover amounts due under this Agreement.
6. ANY ACTION OF ANY KIND AGAINST SELLER BY BUYER MUST BE COMMENCED WITHIN ONE YEAR FROM THE DATE OF SUCH RIGHT, CLAIM, DEMAND OR CAUSE OF ACTION SHALL FIRST ACCRUE.
7. a. The parties hereto irrevocably agree that each and every controversy or claim arising out of, in connection with or relating to this contract or the interpretation, performance or breach thereof shall be settled by arbitration before three (3) arbitrators in the City of New York under the rules then obtaining of the American Arbitration Association, or its successor and under the laws of the State of New York. All such awards shall be final and binding.
b. In any arbitration in which any award is made in favor of Seller, Seller shall be entitled, in addition to other damages awarded to it, to recover from Buyer, all costs and expenses of the arbitration including its reasonable attorneys' fees.
c. Should either party of this Agreement bring an action to enforce the terms hereof or declare rights hereunder, the prevailing party in any such action, or trial or appeal, shall be entitled to its reasonable attorney's fees to be paid by the losing party.
8. Force Majeure. This contract and Seller's performance thereunder are subject to all contingencies beyond Seller's control and beyond the control of Seller's supplier and the manufacturer, including but not limited to the force majeure; strikes; labor disputes floods; civil commotion; war; riot; act of God; rules, laws, orders, restrictions embargoes, quotas or actions of any government, foreign or domestic or any agency or subdivision thereof; causalities; fires; accidents; shortages of transportation facilities; detention of goods by customs authorities; loss of goods in public or private warehouses, or other casualty or contingency beyond Seller's control or the control of Seller's supplier or the manufacturer or otherwise unavoidable. In any such event Seller shall have the right, at its election and without liability on it to Buyer, to (a) cancel all or any portion of this contract, or (b) perform this contract as so restricted or modified to the extent determined by Seller in its sole and absolute discretion or (c) perform the contract within a reasonable time after the causes for nonperformance or delay have terminated.
9. Assignment. This Agreement is not assignable nor the duties hereunder delegable by Buyer without the written consent of Seller. Any assignment or delegation without such consent shall be void and of no effect.
10. Waiver. The waiver by Seller of any breach of any term, covenant or condition contained in this Agreement shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition contained in this Agreement.
11. Complete Agreement. This writing is intended by the parties hereto as a final expression of their agreement and as a complete and exclusive statement of the terms hereof. This Agreement can be modified only by a writing signed by the parties hereto or their authorized agents. No terms or provision contained in a purchase order or any other document may modify this Agreement.
12. Notices. All notices and other communications required to be given by this Agreement or by an applicable provision of the Uniform Commercial Code shall be in Writing-and shall be deemed given if delivered personally or mailed postage prepaid to the appropriate party at the address set forth in the purchase order (or at such other address for a Party as shall be specified by like notice).
13. Severability. The unenforceability, invalidity or illegality of any provision of this Agreement shall not render the other provisions unenforceable, invalid, or illegal.
14. Export Controls and Regulations. The commodities, technology or software that are the subject of this Agreement may be exported from the United States only in accordance with the Export Administration Regulations. Export contrary to U.S. law is prohibited. All exports of commodities, technology or software contemplated by this Agreement shall be exported by Seller from the United States in accordance with the Export Administration Regulations. Diversion or re-export of any such exports contrary to U.S. law is prohibited.
15. Applicable Law. This contract shall be deemed to have been made in and its interpretation and performance thereunder shall be governed by the laws of the State of New York without reference to its conflicts of laws provisions and the parties hereto severally recognize and consent to the jurisdiction over each of them of the Courts of the State of New York and of the American Arbitration Association or its successor.