The sale of any Products and/or Services by Hitachi Global Air Power US, LLC (“Seller”) to Buyer (as defined below) is expressly conditioned on Buyer's acceptance of these Hitachi Global Air Power Terms & Conditions of Sale (these “Terms and Conditions”). Any additional, different or pre-printed terms and conditions of sale proposed by Buyer are expressly rejected and will not be binding upon Seller unless otherwise agreed to in a writing signed and delivered to Buyer by an authorized representative of Seller. Any oral or written understanding, agreement, representation or warranty not contained in these Terms and Conditions or the mutually agreed Order (as defined below) shall not be binding on either party. Any Order submitted to Seller by Buyer or instruction from Buyer to Seller to perform work pursuant to an Order, or any assent to Seller’s performance pursuant to any Order or any other similar contract or instrument issued by Buyer to Seller, shall constitute Buyer’s acceptance of these Terms and Conditions.
- Definitions.
When used in these Terms and Conditions, the following terms will have the following meanings:
- “Agreement” means an Order together with these Terms and Conditions.
- “Buyer” means the party purchasing and/or accepting delivery of products or services from Seller pursuant to an Order.
- “Product(s)” means the equipment and parts provided by Seller pursuant to an Order.
- “Services” means services performed or provided by Seller pursuant to an Order, including, without limitation, air audits, product rentals, and product installation, maintenance or repair.
- “Order” means a written request submitted to Seller by Buyer to purchase products from Seller.
- “EAR” means the Export Administration Regulations of the United States (15 C.F.R. 730 et seq.).
- Prices and Quotations.
All prices, whether shown in Seller’s ordering portals, printed Price Lists or in Order acknowledgements, or otherwise quoted by Seller, are in U.S. dollars and are subject to change without notice at any time prior to actual shipment of products.
Seller’s quoted prices of products or services do not include federal/national taxes, state, provincial or local sales taxes, use taxes, occupational taxes or value added taxes applicable to the purchase or sale of such products or services. Unless prohibited by law, Buyer is responsible for and shall pay all applicable sales, use, occupational, excise, value added, or other similar taxes applicable to the manufacture, sale, import, export, delivery, or use of the products or services provided by Seller except where Buyer provides Seller with a tax exemption certificate acceptable to and considered valid by the applicable taxing authorities. As it relates to Orders requiring export from the United States, the payment of applicable taxes may also be governed by the applicable Incoterms and the tax laws and regulations of the destination country.
Seller reserves the right to make price corrections due to typographical or engineering errors, or because of incomplete or inaccurate information received from Buyer.
- Payment Terms.
With approved credit, all payments are due Net Thirty (30) Days from date of invoice. Alternate payment terms may apply to credit terms extended to Buyer by Seller and may vary by region. Past due accounts are subject to a service charge, unless otherwise expressly agreed upon in writing signed by an authorized representative of Seller. Failure to make prompt and full payment under any Order constitutes a material breach thereof.
In the absence of any specific designation of a payment to a particular account of Buyer, or in the event of a failure by Buyer to make timely payment under this or any other contract with Seller, Seller may, at its election, apply any payments by Buyer to Buyer’s various accounts in such proportion as Seller shall deem appropriate.
If Seller’s delivery of products pursuant to an Order is delayed at the request of Buyer, storage fees will apply as a valid surcharge applicable to such Order and will be invoiced and paid by Buyer net-30 days from delivery of Seller’s invoice therefor.
All shipments against milestone-based Orders for Seller’s centrifugal compressor products shall be separately invoiced and paid for without regard to the status of prior or subsequent shipments under such Orders. Delays in shipment or nonconformities in any partial shipment under such Orders shall not relieve Buyer of its obligation to accept and pay for prior or subsequent shipments thereunder. Buyer shall comply with Seller’s credit terms set forth in Sections 18 and 19 and as announced by Seller from time to time.
Specifically with respect to milestone-based Orders for Seller’s centrifugal compressor products, except as otherwise expressly agreed in writing by Seller and Buyer, the following milestone-based payment terms will apply to any Orders in an amount greater than USD$100,000:
Milestone Amount Due Payment Terms Completion of Drawing(s) 20% of total purchase price Net-30 Days from Invoice Commencement of Product Build 20% of total purchase price Net-30 Days from Invoice Shipment of Finished Product from Seller’s Factory 60% of total purchase price Net-60 days from Shipment from Seller’s Factory - Delivery
Unless otherwise stated on the face of an Order and agreed to in writing by Seller, all products are delivered FCA Seller's facility (Incoterms 2020), freight prepaid and add. Seller will prepay all freight and invoice the Buyer for freight and handling. Seller shall use reasonable efforts to ensure prompt shipment in a commercially reasonable manner. Shipment dates and delivery dates are estimates only and are not guaranteed. Seller disclaims any liability or responsibility for the late or non-delivery of products hereunder. Seller shall additionally not be liable for failure to deliver or delays in delivery of the products or services covered by this Order if such failure or delay is due, in whole or part, to a Force Majeure Event (as defined below).
- Risk of Loss
Risk of loss, destruction of or damage to the products shall be Seller's until delivery of the products to a carrier at Seller's facility. Thereafter, Buyer shall be fully responsible for and assume all risk of loss, destruction of or damage to the products. Loss or damage to the products after risk of loss has passed to Seller will not release or excuse Buyer from its obligations under this Order to Seller, including the obligation to make full payment.
- Short Shipments/Damage Claims
Seller will have the right to fulfill product Orders in partial shipments, and Buyer shall not have the right to reject delivery of a product shipment on the basis that the shipment contains less than all the products specified on the applicable Order. To the extent delivered in partial shipments, Seller will invoice such shipments separately, and Buyer will pay such invoices when due, without regard to the timing of subsequent shipments of products on the same Order. To preserve any claims against carriers for freight damage, loss or short shipments, Buyer must report any claim of damage, loss or short shipment in writing to Seller as soon as possible after receipt (or non-receipt, if applicable) of the applicable products, but in no case should more than four (4) days thereafter.
- Inspection of Products upon Arrival.
Buyer will inspect products received under an Order within 10 days of receipt thereof at Buyer’s location. Within such 10-day period, if in Buyer’s judgment any of the products are defective or otherwise not in accordance with Seller’s specifications therefor, or an excess quantity of products have been delivered in error, Buyer may reject the products. Buyer will be deemed to have accepted the products, unless Buyer notifies Seller in writing of such rejection and the grounds for rejection within the 10-day inspection period. In such event, Seller will determine, in its sole discretion, whether the products are defective or nonconforming or delivered in excess of the quantity ordered. If determined that one or more products are defective or nonconforming, Seller will either, in its sole discretion: (i) replace the affected products with non-defective or conforming products; or (ii) refund the price already paid by Buyer (if any) for the affected products, as well as any related shipping expenses incurred by Buyer. If determined that an excess quantity of products was received by Buyer, Seller will refund the price paid by Buyer (if any) for such excess quantity of products, as well as any related shipping expenses incurred by Buyer. Seller acknowledges and agrees that the remedies set forth in this Section 7 are Buyer’s exclusive remedy for the delivery of defective or nonconforming products, and for the delivery of any excess quantity of products, during the 10-day inspection window.
Buyer will return ship, at Seller’s expense, all such defective or nonconforming products or excess quantities of products to Seller. If Seller exercises its option to replace such defective or nonconforming products, Seller will, after receiving Buyer’s shipment of the defective or nonconforming products, ship replacement products to Buyer. After the 10-day product inspection period expires, any claims that products arrived in a defective or nonconforming condition will be covered and corrected solely pursuant to the express limited warranty afforded to the applicable products by Seller.
- Returned Products
No product may be returned without the written permission and specific shipping instructions of Seller. Custom-made products built to Buyer specifications will not be eligible or accepted for return. Only standard Seller product models will be considered for return unless otherwise expressly agreed in writing by Seller. Products approved for return by Buyer must be securely packed, so as to reach Seller without damage. Any cost incurred, or mark-downs absorbed, by Seller because such products are returned in any condition other than brand new, factory-sealed, undamaged, and fully resaleable condition, will be charged to, and paid by, Buyer. Returned products become property of Seller. Products accepted for return are subject to a restocking charge of 25% of the originally agreed purchase price therefor, plus all transportation charges incurred by Seller. All such returns shall be in accordance with return policies and procedures established by Seller (which can be provided to Buyer upon request), which policies and procedures may from time to time be amended and updated by Seller in its sole discretion.
Authorized Sullair Distributors are eligible to participate in an annual parts return program. Guidelines for that program are posted in the MySullair distributor portal.
- Canceled Orders
Buyer shall have no right to cancel an acknowledged Order or any portion thereof, or an Order that Seller has begun to fulfill, unless Seller, in its sole discretion, agrees in writing that the specific Order or portion thereof may be cancelled. Any Seller approved cancellation initiated by Buyer, will be contingent upon the Buyer paying applicable cancellation charges in accordance with cancellation policies and procedures established by Seller (which can be provided to Buyer upon request), which policies and procedures may from time to time be amended and updated by Seller in its sole discretion.
Applicable cancellation charges may include, without limitation, costs and expenses incurred by Seller resulting from the cancellation based upon factors such as the timing of cancellation, the type of product or parts involved, special options specified, and the phase of production. The total amount of cancellation fees payable will in no event exceed the product’s purchase price.
Seller may cancel any pending or accepted Order, even after it has been acknowledged by Seller, with no liability to Seller.
- Designs and Specifications
The design and specifications of Seller's products are subject to change without notice. Seller reserves the right to ship the latest type and design of products at current prices and shall have no liability or obligation for changes in design or specifications.
- Assignment.
Buyer is not permitted to assign the Agreement, nor assign any of its rights or delegate any of its obligations thereunder, without the prior written consent of Seller. No assignment or delegation relieves the assigning or delegating party of any of its obligations under the Agreement. Seller may assign, without the consent of Buyer, any of its rights or delegate any of its obligations to any successor-in-interest or to any person or entity acquiring all or substantially all of Seller’s assets. Subject to these restrictions, the provisions of the Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
- Modification
No amendment or modification to the Agreement is valid unless it is in writing and signed by both parties.
- Infringement.
Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the product in combination with other equipment or in the operation of any process.
- Seller’s Limited Warranty; Limitation of Remedy and Damages
Seller provides to Buyer a limited warranty against defects in materials and workmanship in accordance with the limited warranty terms and conditions set forth in Seller’s Warranty Policy Handbook, as may be amended and updated by Seller from time to time. Buyer may obtain a copy of the most current version of Seller’s Warranty Policy and Procedures Handbook from the Seller sales representative(s) assigned to Buyer or through Buyer’s local authorized SULLAIR-brand distributor (reference: WQA106 Warranty Policy Handbook; WQA119 Warranty Forms).
EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SELLER’S WARRANTY POLICY AND PROCEDURES HANDBOOK, NEITHER SELLER NOR ANY PERSON ON COMPANY’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING: (I) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; OR (II) WARRANTIES OF PERFORMANCE OF GOODS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT OR USAGE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED BY SELLER. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT BUYER HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON COMPANY’S BEHALF, EXCEPT AS EXPRESSLY SET FORTH IN OR CONTEMPLATED BY THIS AGREEMENT. THE PARTIES HEREBY EXPRESSLY AGREE THAT SELLER’S EXPRESS LIMITED WARRANTIES CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF BUYER, AND THE SOLE AND EXCLUSIVE LIABILITY OF SELLER, IF A PRODUCT PURCHASED BY BUYER DOES NOT CONFORM TO SELLER’S WARRANTIES.
- Time of Actions
Any claim or cause of action against Seller by Buyer alleging breach of contract, breach of warranty, non-payment or otherwise in connection with an Order must be commenced by Buyer within one year after the occurrence of the incident(s) that form the basis of such claim or cause of action, and no claim or cause of action based thereupon may be instituted after the expiration of such one-year period.
- Limitations of Liability.
IN NO EVENT WILL EITHER PARTY OR ANY OF ITS REPRESENTATIVES BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS OR REVENUES, LOST DATA, LOSS OF UPTIME, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT THE BREACHING PARTY WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES OR (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY AGREED OR OTHER REMEDY; PROVIDED, THAT THE FOREGOING SHALL NOT EXCLUDE ANY AMOUNTS PAYABLE TO THIRD PARTIES FOR WHICH A PARTY OWES AN INDEMNIFICATION OBLIGATION HEREUNDER.
- Force Majeure.
No party will be liable or responsible to the other party, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations to make payments to the other Party under the Agreement), when and to the extent the failure or delay is caused by or results from acts beyond the impacted party’s reasonable control, including, without limitation, acts of God, flood, fire, earthquake or explosion, war, invasion, hostilities, terrorist threats or acts, riot, or other civil unrest, requirements of law, actions, embargoes or blockades in effect on or after the date of this Agreement, closing of harbors, docks, canals, or other assistances to or adjuncts of the shipping or navigation of or within any place, the occurrence any Serious Supply Chain Disruption (as defined below), actions by any governmental authority, including, without limitation, in response to epidemics or pandemics, national or regional emergency, or strikes, labor stoppages or slowdowns or other industrial disturbances (in each case, a “Force Majeure Event”). The impacted party will give notice to the other party within thirty (30) days of the Force Majeure Event, stating the details of the Force Majeure Event and the period of time the occurrence is expected to continue. The impacted party will use commercially reasonable efforts to mitigate the effect of the Force Majeure Event. If one or more Force Majeure Events occur which prevent either party from carrying out all (or substantially all) of its obligations under this Agreement for more than one hundred eighty (180) calendar days in aggregate, either party may terminate this Agreement after good faith consultation with the other party regarding alternative solutions. Notwithstanding the foregoing, a Force Majeure Event is not a valid basis to delay or postpone payment of amounts when due for products delivered or services performed pursuant to an Order. For purposes of these Terms and Conditions, “Serious Supply Chain Disruption” means a serious and unusual failure or disruption in the supply chain for Seller's products or services that impedes and delays Seller’s capacity to timely procure relevant parts, components or materials, such as an unexpected shutdown of one or more key suppliers’ manufacturing facilities, severe cost increases, unusually long lead-times, and/or unavailability or severe scarcity or shortages of materials, parts and/or components, where such failure or disruption is due to circumstances that are not within the reasonable control of Seller.
- Extension of Credit.
Seller’s authorization of Buyer to pay for products or services purchased on credit extended to Buyer by Seller shall, at all times, be subject to credit approval and limitations established by Seller’s credit department. Prior to any extension of credit, Buyer shall submit to Seller a credit application in a form acceptable to Seller. Buyer shall execute such other instruments or documentation as Seller shall from time to time reasonably require prior to any extensions of credit to Buyer. If Buyer shall fail to make any payments in accordance with the terms and conditions hereof or of any instrument or document referred to herein, or if Seller at any time has any doubt as to Buyer’s financial capacity, solvency or creditworthiness, Seller, in addition to all other rights and remedies, but not in limitation thereof, may at its option and without notice defer shipments or deliveries under any Order, or under any other contract with Buyer, until such time as Seller receives reasonably satisfactory security or payment of cash in advance of shipment.
Upon request from Seller, Buyer agrees to execute a security agreement covering the products sold or other assets and to perform all acts, and execution of all other instruments, which may be necessary to establish a perfected security interest in such products or assets in favor of Seller.
A service charge will be assessed on all delinquent accounts.
- Collection Costs and Expenses.
Buyer shall pay all costs and expenses incurred by Seller associated with collection from Buyer of amounts not paid when due under any Order, including, without limitation, reasonable attorney’s fees, court costs, and collection agency fees.
- Waiver.
No claim or right arising out of a breach of any Order or these Terms and Conditions can be forfeited, excused or discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the waiving or renouncing party.
- Severability.
If any term, covenant, warranty or condition of the Agreement, or the application thereof to any person or circumstance shall, to any extent, be held or deemed invalid or unenforceable, the remainder of the Agreement or the application of such term, covenant or provision, to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining term, covenant or provision of the Agreement shall be deemed valid and enforced to the fullest extent permitted by law.
- Indemnification.
Buyer will indemnify, hold harmless, and defend Seller and its affiliates, subsidiaries, officers, directors, employees and representatives (each, a “Seller Indemnitee”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement (collectively, “Losses”), incurred by a Seller Indemnitee, arising out of or relating to any claim of a third party:
- relating to a breach or non-fulfillment of any representation, warranty or covenant under the Agreement by Buyer, its affiliates, or its personnel;
- alleging or relating to any act or omission of Buyer, its affiliates, or its personnel in connection with the performance of its obligations under the Agreement;
- alleging or relating to any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or negligent acts or omissions of Buyer, its affiliates, or its personnel;
- relating to a purchase of a product by any person or entity purchasing directly or indirectly through Buyer and not directly relating to a claim for breach of product warranty;
- relating to any failure by Buyer, its affiliates, or its personnel to comply with any applicable laws; or
- alleging that the Buyer breached its agreement with the third party as a result of or in connection with entering into, performing under or terminating the Agreement.
Notwithstanding anything to the contrary in the Agreement, an indemnifying party is not obligated to indemnify or defend the indemnified party against any third party claim if the third party claim or corresponding Losses arise out of or result from, in whole or in part, the indemnified party’s (or any of its affiliates’ or personnel’s): (a) acts or omissions; (b) bad faith failure to comply with any of its (or their) material obligations under this Agreement; or (c) use of the Products purchased under this Agreement in any manner that does not materially conform to the then-current usage specifications provided by Company.
- General
Some products are equipped with AirLinx®, a remote monitoring technology that enables Seller, distribution and service partners, and product owners to record product operating parameters, monitor product performance, and receive alerts regarding breakdowns or unscheduled stops. Access to AirLinx features and associated product data and alerts may be subject to acceptance of certain terms and conditions of use and require certain approvals by an authorized representative of the product owner.
Any design, manufacturing drawings, or other information or material submitted to the Buyer and not intended for dissemination by Buyer remain the exclusive property of Seller and may not, without its consent, be copied or communicated to a third party.
Buyer shall not acquire and has no rights to Seller’s intellectual property, and nothing in this Agreement shall be construed as providing any rights to Buyer to Seller’s intellectual property. All of Seller’s intellectual property and all intellectual property developed by Seller with respect to the products shall be solely owned by Seller, including but not limited to any intellectual property developed in response to the requirements or suggestions of Buyer. If Buyer acquires any intellectual property rights in or relating to any product purchased under this Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller without further action by either party.
Products sold by Seller may be subject to the EAR and other applicable laws. Such products may not be exported, released, or disclosed to any foreign entity or foreign national inside or outside of the United States without first obtaining required U.S. Government approval or a validated export license. A violation of the EAR or other applicable laws may be subject to a penalty and fine. Diversion or any product contrary to the EAR or any other applicable laws is prohibited.
- Governing Law.
The Agreement, including all exhibits, schedules, attachments and appendices thereto, and all matters arising out of or relating to the Agreement, are governed by, and construed in accordance with, the laws of the State of Indiana without regard to the conflict of laws provisions thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Products does not apply to the Agreement.
- Waiver of Jury Trial; Venue Selection.
EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING OR ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT OR ANY ORDER OR OTHER AGREEMENTS OR INSTRUMENTS EXECUTED IN CONNECTION THEREWITH, THE ADMINISTRATION THEREOF, OR THE TRANSACTIONS CONTEMPLATED THEREUNDER. All legal proceedings and actions under the Agreement will be brought in the state courts located within LaPorte County, Indiana or the federal courts located in the Northern District of Indiana, and the Parties hereby consent to the personal jurisdiction and venue of these courts.
Web Revision: 06 – 05242024