Terms and Conditions

MATSUURA MACHINERY USA, INC.

TERMS AND CONDITIONS

Effective Date: March 3, 2026

Any sale of goods, products, or equipment (collectively, the “Goods”) by Matsuura Machinery USA, Inc. (“Seller”) to the purchaser identified on the applicable quotation, purchase order, order acknowledgment, invoice, or other ordering document (the “Buyer”) shall be governed exclusively by the terms and conditions set forth herein (these “Terms”). Each quotation, purchase order, order acknowledgment, or similar document issued in connection with the sale of Goods (each, an “Order”) shall be subject to and governed by these Terms, which are hereby incorporated by reference into and made a part of every such Order.

Sales of Goods may be made by Seller either directly to Buyer or indirectly through an authorized distributor, dealer, or reseller (“Dealer”). Where Goods are sold through a Dealer, these Terms apply to the sale of Goods by Seller to such Dealer and, to the extent applicable, to the end user or ultimate purchaser of the Goods, except as otherwise expressly stated in the applicable Order or in a separate written agreement.

Buyer acknowledges that Seller’s obligations under these Terms apply only to the party purchasing the Goods directly from Seller, and that Seller shall have no obligations to any third party except to the extent expressly provided herein or required by applicable law. 

Buyer’s Order may specify certain commercial details, including quantity, configuration, pricing, or delivery information (“Order Details”). Such Order Details shall be deemed accepted only to the extent they do not conflict with these Terms. In the event of any inconsistency between these Terms and any Order Details or other document issued by Buyer, these Terms shall govern and control unless Seller expressly agrees otherwise in a written document signed by an authorized officer of Seller.

Seller expressly rejects any additional or different terms or conditions, or other writing proposed by Buyer, and any effort by Buyer to negate these Terms. No modification or waiver of these Terms will be effective against Seller unless specified in a writing which is signed by an officer of Seller. These Terms shall override and supersede any previous or contemporaneous agreement or arrangement, whether oral or in writing, between the Seller and Buyer in relation to the subject matter of the Order. Upon request of Buyer, Seller may, but is under no obligation to, provide Buyer, subject to Seller’s terms (including, without limitation, for such fees as Seller may charge), with labor, service, training or technical assistance with respect to Goods delivered hereunder.

  1. Orders and Acceptance. 
    1. Quotations. Any quotation issued by Seller is subject to correction for errors or omissions and is valid for a period of thirty (30) days from its date unless otherwise stated. All quotations are non-binding and constitute invitations to submit an order, unless expressly stated otherwise in writing by Seller.
    2.  Submission of Orders. All Orders are subject to acceptance by Seller, which may be evidenced by Seller’s written acknowledgment, commencement of performance, or shipment of the Goods. Seller’s acceptance is further subject to Buyer having credit and financial standing satisfactory to Seller. Buyer shall provide all information reasonably required by Seller to process and fulfill an Order. Seller shall have no obligation to accept any Order that is incomplete, inaccurate, or not submitted in writing.
    3. Buyer’s Assent/Conflicting Terms. Buyer’s acceptance of any Goods, or payment of any portion of the purchase price, shall constitute Buyer’s acceptance of these Terms. Any additional or different terms proposed by Buyer in any purchase order or other document are hereby rejected and shall be of no force or effect unless expressly agreed to in writing by Seller. Except for terms relating to quantity or delivery schedule expressly accepted by Seller, no such additional or conflicting terms shall modify or supplement these Terms except as provided herein.
    4. Buyer Acceptance of Goods. For the avoidance of doubt, any Good or part thereof shall be deemed accepted by Buyer when such Good or part has been installed or tested to be operational, or upon first commercial use, whichever occurs first.
    5. No Extra Commitments. No written or oral promises or conditions not expressly set forth in these Terms shall be binding upon Seller. These Terms are binding on Seller only after Seller’s acceptance of an Order as provided above. Use by Seller of any payments made by Buyer prior to shipment shall not constitute acceptance by Seller.
    6. Seller’s Right to Revoke Acceptance. Notwithstanding any of the foregoing, Seller shall be entitled to revoke its acceptance hereof without liability to Buyer if, at any time prior to the shipment of Goods set forth in any Order, Seller becomes aware of a change in the financial position of Buyer which would, in Seller’s opinion, affect Buyer’s ability to perform its obligations hereunder, or if Seller reasonably determines that it cannot obtain required materials, components, or manufacturing capacity on commercially reasonable terms, or if the applicable manufacturer of Goods declines to provide such Goods, in whole or in part, to Buyer, for any reason whatsoever. In such instance, Seller’s sole obligation shall be to return to Buyer any down payment which Seller is holding pursuant hereto.
    7. Dealer Transactions. Where Goods are sold through an authorized dealer, such dealer shall be deemed the “Buyer” for purposes of these Terms, and all rights and obligations shall apply accordingly.
  2. Delivery.
    1. Shipping Terms; Risk of Loss. Unless otherwise stated in the applicable Order, all Goods or parts thereof shall be delivered Ex Works (EXW, Incoterms® 2020) Seller’s designated facility. Title to and risk of loss for the Goods shall pass to Buyer upon delivery at Seller’s facility. Notwithstanding the foregoing, title to the Goods shall not pass until Seller has received payment in full of all amounts due. Buyer shall be responsible for all costs of transportation, freight, insurance, duties, and other charges related to shipment, including costs associated with the return or replacement of Goods.
    2. Delivery Estimates; Buyer Cooperation. Delivery dates and production schedules are estimates only and are based upon Seller’s receipt of all information, materials, approvals, and instructions reasonably required to perform. If Buyer fails to timely provide any required information or approvals, Seller may, at its option, base performance on previously provided information or adjust delivery schedules accordingly.
    3. No Liability for Delay; Waiver. Failure to meet any estimated delivery date shall not constitute a breach of these Terms. Seller shall not be liable for any damages, losses, or expenses arising from any delay in delivery, and Buyer waives any claim arising from such delay. Acceptance of any Goods by Buyer shall constitute a waiver of any claim for delay with respect to such Goods.
    4. Excusable Delay; Seller Remedies. Seller shall not be liable for any delay or failure in performance caused by events beyond Seller’s reasonable control, including, without limitation, acts of God, war, terrorism, civil unrest, fire, flood, epidemic, pandemic, governmental actions or restrictions, labor shortages or disputes, shortages of materials or components, transportation disruptions, or failures of utilities or suppliers. In the event of such delay, Seller may, at its option, extend the delivery schedule for a period equal to the duration of the delay or cancel the affected Order, in whole or in part, without liability.
  3. Warranties and Remedy.
    1. Scope of Limited Warranty. For any Good or part thereof sold by Seller to Buyer that is manufactured by Seller, Seller warrants that, at the time of shipment, such Good or part shall be free from defects in material and workmanship and shall conform to the applicable specifications set forth in the applicable Order. Seller further warrants good and marketable title to the Goods, free and clear of all liens and encumbrances other than those arising under these Terms. Except as expressly provided herein, Seller makes no other warranties with respect to the Goods.
    2. Limited Remedy. If any Good or part thereof, under normal and proper use, proves to be defective in material or workmanship during the applicable warranty period, as determined by an inspection by an authorized representative of Seller, and provided that Buyer notifies Seller in writing of such defect within twenty-four (24) months from the date of installation, Seller shall, at its option, (i) repair, (ii) replace, or (iii) refund the purchase price of such defective Good or part, provided that the defective item is returned to Seller in accordance with Seller’s instructions. All repair or replacement shall be performed Ex Works (Incoterms 2020) Seller’s designated facility.
    3. Exclusions from Warranty Coverage. Seller shall have no obligation under this Section with respect to any Good or part thereof that has been: (a) subjected to misuse, abuse, neglect, accident, or improper installation, operation, or maintenance; (b) altered or modified without Seller’s prior written consent; (c) used in a manner inconsistent with Seller’s specifications or instructions; or (d) at any time while Buyer is in default of any of its obligations to Seller.
    4. Exclusive Warranty; Disclaimer. THE WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY SELLER AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  4. Third Party Products; Disclaimer of Warranty. ANY SEPARATELY LISTED ITEM(S) OF THE GOODS WHICH IS NOT A PRODUCT OF SELLER IS NOT WARRANTED BY THE SELLER AND SHALL BE COVERED ONLY BY THE EXPRESS WARRANTY(S), IF ANY, OF THE MANUFACTURER THEREOF. IN RESPECT OF THE SAME, SELLER HEREBY ASSIGNS TO BUYER, TO THE EXTENT ASSIGNABLE, SUCH MANUFACTURER’S WARRANTY FOR SUCH GOOD OR PART, AND SELLER SELLS SUCH GOOD OR PART TO BUYER “AS IS” AND “WITH ALL FAULTS” AND SELLER DISCLAIMS, AND THERE SHALL BE EXCLUDED FROM THE RELATIONSHIP BETWEEN BUYER AND SELLER, ANY WARRANTY, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE AND ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SUCH GOOD OR PART.
  5. Engineering and Technical Materials; Working Papers.
    1. Nature, Timing and Use of Working Papers. All working papers, drawings, writings, data, designs, specifications, proposals, quotations, and other materials or information, whether provided before or after the placement or acceptance of an Order (collectively, “Working Papers”), are provided by Seller for informational and evaluation purposes only and shall not be binding on Seller unless expressly incorporated into an accepted Order. Buyer acknowledges that it has not relied and shall not rely upon any Working Papers except to the extent expressly incorporated into an accepted Order.
    2. Pre-Order Disclosures; Ownership; Confidentiality. Working Papers may be disclosed by Seller to Buyer prior to the placement or acceptance of an Order in connection with discussions, evaluations, quotations, or proposals. All Working Papers shall remain the sole and exclusive property of Seller and are provided for Buyer’s limited internal use only. Buyer shall hold all Working Papers in strict confidence and shall not disclose or use such Working Papers for any purpose other than evaluating, installing, operating, or maintaining the Goods. Unless otherwise expressly agreed in a written non-disclosure agreement between the parties, such pre-Order disclosures shall be governed by this Section. In the event an applicable NDA exists, the confidentiality provisions of such NDA shall govern with respect to pre-Order disclosures, and this Section shall supplement, and not limit, Seller’s rights relating to ownership, confidentiality, and permitted use of the Working Papers.
    3. Return of Working Papers; Design Changes. Upon Seller’s request, Buyer shall promptly return or destroy all Working Papers, except to the extent retention is required by applicable law, in which case such retained materials shall remain subject to the confidentiality obligations herein. Seller reserves the right, at any time and without notice, to make changes in the design, construction, or specifications of any Goods, and shall have no obligation to make corresponding changes to Goods previously delivered.
  6. Buyer Specifications. In any proposal or quotation issued by Seller that is based on Buyer’s requirements, specifications, or instructions, Buyer acknowledges and agrees that Buyer alone has determined that the Goods are suitable for Buyer’s intended use. Seller makes no representation or warranty regarding the fitness or suitability of the Goods for Buyer’s particular purpose except as expressly set forth in an accepted Order.
    If any Good or part thereof is manufactured, modified, or supplied in accordance with Buyer’s designs, drawings, specifications, or instructions, Buyer shall indemnify, defend, and hold harmless Seller and its affiliates, officers, directors, employees, and agents from and against any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) any alleged or actual infringement or misappropriation of any patent, trademark, copyright, trade secret, or other intellectual property right; or (b) the use, sale, or other disposition of such Good, in each case to the extent arising from or relating to such Buyer-provided designs, specifications, or instructions.
    Buyer’s obligations under this Section are in addition to, and not in limitation of, any other indemnification or defense obligations of Buyer under these Terms.
  7. Prices.  Prices are those in effect at the time an Order is accepted by Seller and are subject to change by Seller without prior notice. Seller shall have the right to increase prices to reflect any increase in costs arising after the date of any quotation as a result of, but not limited to: (i) any alteration in or addition to Buyer’s requirements; (ii) Buyer’s instructions or lack of instructions; (iii) any interruptions, delays, overtime work, mistakes, or alterations arising from the work of other contractors or from circumstances outside Seller’s reasonable control; or (iv) any increase in taxes, duties, tariffs, or similar charges applicable to the Goods. If Buyer objects to any such price increase, Seller may, at its option and without liability, cancel any unfilled portion of the applicable Order, and Buyer shall have no claim against Seller arising from such cancellation. Seller may include, as a separate line item on the invoice, charges for any special packaging, handling, or shipping materials (including crates, skids, tarpaulins, or similar devices) used to protect the Goods during shipment. Orders not shipped within six (6) months of the scheduled delivery date due to delays attributable to Buyer may, at Seller’s option, be subject to storage charges and/or price adjustments. Except as expressly stated in an applicable Order, all prices are exclusive of sales, use, excise, value-added, and similar taxes, duties, or governmental charges of any kind, all of which shall be paid by Buyer in addition to the stated price.
  8. Payments. Unless otherwise agreed to in a writing signed by a duly authorized officer of Seller, Buyer shall pay to Seller the amounts and in accordance with the payment schedule set forth in the applicable Order. In the event that any agreed upon down payment is not received by Seller within the time specified in the applicable Order, Seller shall have the right, but not the obligation, to cancel Buyer’s order without any liability. Interest (at the rate of one and one-half percent (1.5%) per month (18% annual percentage rate) or the maximum legal rate, whichever is lower) will be charged to Buyer on all amounts owed to Seller hereunder that remain after their due date. Seller reserves the right to modify payment terms or require additional security or advance payment at any time prior to delivery upon reasonable notice to Buyer. Buyer’s failure to pay on this or on any other obligation to Seller in a timely fashion will entitle Seller to hold delivery of accepted and/or completed orders until appropriate payment is made. Payment terms are subject to ongoing satisfactory credit approval of Buyer. Seller may, at any time, suspend performance and/or cancel further performance of any order or require full or partial payment in cash, delivery of security and collateral, or other adequate assurance satisfactory to Seller when, in Seller’s judgment, the financial condition of Buyer or other grounds for insecurity warrant such action. Buyer agrees to pay all collection expenses (including, without limitation, all court costs, legal and administrative expenses, and attorneys’ and other fees) paid or incurred by Seller to recover all amounts due to Seller. In the event of bankruptcy or insolvency of Buyer or in the event any proceeding is brought by or against Buyer under the bankruptcy or insolvency laws, Seller shall be entitled to cancel any order of Buyer then outstanding and shall receive reimbursement by Buyer for such cancellation as provided in Section 9.
  9. Cancellations and Returns. An Order may be canceled by Buyer only if Buyer’s written request for cancellation is accepted and agreed to in writing signed by a duly authorized representative of Seller. Buyer agrees that if Seller accepts Buyer’s written request for cancellation, any and all work that can, in Seller’s judgment, be completed within thirty (30) days from the date thereof (the “Completed Work Date”) shall be completed, delivered, and paid for in full by Buyer. With respect to any Good or part thereof associated with Buyer’s cancelled order that, in Seller’s judgment, cannot or is not completed, delivered, and paid for by Buyer at the Completed Work Date, Buyer shall be responsible, and make payment to Seller, for Seller’s lost profits with respect to such Good or part thereof, which amount shall be computed as that portion of the work completed up to and including the date that Seller agrees in writing to Buyer’s cancellation based on the purchase price and the percentage of work completed, all of Seller’s reasonable costs and expenses (including, without limitation, any materials or supplies procured or for which definite commitments have been made in connection with Buyer’s order), and a cancellation fee of fifteen percent (15%) of the foregoing amounts.
  10. Storage. Any item, component or other material utilized with respect to the Good(s) or part thereof on which manufacture or shipment is delayed, by causes within Buyer’s control, may be placed in storage by the Seller for Buyer’s account and risk, either at the Seller’s own facility or elsewhere on Buyer’s behalf and all resulting charges for storage, insurance, transport or demurrage (including the Seller’s charge for storage) and incidental expenses shall be payable by Buyer. Seller may, at its option, pay such charges and expenses on behalf of Buyer and Buyer shall reimburse Seller on demand for such payment. All Good(s) may be invoiced on the day they are put into storage, and, for the purposes of payment by Buyer and liability hereunder, such Good(s) shall be deemed to have been delivered and the risk of loss shall pass to Buyer on that day.
  11. Grant of Security Interest. To secure the full and prompt payment and performance of any and all debts, liabilities, agreements, covenants, warranties, obligations, and amounts from time to time now or hereafter owing by Buyer to Seller and/or to any of Seller’s affiliates (the “Obligations”), Buyer, in consideration of Seller’s obligations hereunder, and for other Good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, grants to Seller, for itself and as agent for each and all of its affiliates (as the case may be, the “Secured Party”) a continuing first priority security interest in and lien against any Good or part thereof tendered for delivery to Buyer by Seller or any of Seller’s affiliates, together with any and all additions, accessions and replacements thereto and proceeds and products thereof, whether now owned or existing or hereafter acquired or coming into existence (collectively, the “Collateral”).
    For purposes of this Section 11, an “affiliate” of Seller shall mean each corporation or business entity that now or at any time hereafter, directly or indirectly, controls, is controlled by or is under common control with Seller, including, without limitation, all current and hereafter existing corporations and business entities having not less than ten percent (10%) common ownership with Seller.
    Buyer agrees that any Good or part thereof tendered for delivery by Seller or any of its affiliates will be used primarily for business purposes. Buyer irrevocably appoints Secured Party as Buyer’s attorney-in-fact with full authority to take any action and to prepare, execute and/or file any instrument that Secured Party deems necessary to carry out the terms herein and to perfect, and maintain the perfection of, Secured Party’s lien against and first priority security interest in the Goods / Collateral. Buyer agrees to pay any and all costs and expenses in connection with the actions taken by Secured Party in connection with the preceding sentence, or to reimburse Secured Party for the same. Buyer agrees not to remove the Goods / Collateral from the location installed without notifying Seller and further agrees not to permit any of the Goods / Collateral to become a fixture to any real estate that is not subject to a mortgage or deed of trust made by Buyer in favor of Secured Party.
    Upon the happening of any of the following events or conditions: (i) default by Buyer in the payment or performance of any of the Obligations; (ii) Buyer becomes insolvent, is generally unable to pay its debts as they become due, makes an assignment for the benefit of creditors, calls a meeting of creditors for the composition of debts, or makes any material misrepresentation in connection with any of the Obligations; (iii) there shall be filed by or against Buyer a petition for bankruptcy or for reorganization or a custodian, receiver or agent is appointed or authorized to take charge of any of its properties; (iv) there shall occur any material and adverse change in the business operations and conditions of Buyer; (v) there shall occur a material casualty loss with respect to the Goods / Collateral or other security for any of the Obligations, which is not covered by insurance; (vi) the Goods/Collateral or other security for any of the Obligations shall decline in value with the result that Secured Party’s security for the Obligations is materially diminished; or (vii) Secured Party deems itself insecure, then Secured Party may, at its sole option, declare the entire amount of the Obligations then outstanding due and payable at once and, in addition to all other rights and remedies provided herein or otherwise applicable to it, exercise all rights and remedies of a secured party under applicable law. Buyer agrees that any notice of disposition of the Collateral shall be deemed commercially reasonable if sent at least ten (10) days prior to the disposition to Buyer at its last known address.
  12. Confidentiality. “Confidential Information” means all non-public, proprietary, trade secret and confidential information, including but not limited to financial and accounting information, business plans, blueprints, CAD-CAM drawings, engineering diagrams, schematics, engineering or concept drawings and plans, financial projections, pricing information, customer information, and employee information, of Seller, that is (i) disclosed by Seller in any tangible form and is clearly labeled or marked as confidential or proprietary, (ii) disclosed by Seller orally or visually and identified as confidential or proprietary at the time of disclosure and reduced to writing and marked as confidential within thirty (30) days of such disclosure, or (iii) disclosed by Seller, or to which Buyer has access, that a reasonable person would understand to be confidential in nature. Buyer shall not, directly or indirectly, disclose any Confidential Information to any third party or use such Confidential Information for any purpose other than in connection with Buyer’s evaluation, purchase, or use of the Goods, without the prior written consent of Seller. Buyer shall protect all Confidential Information using at least the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable degree of care.
    Buyer may disclose Confidential Information solely to those of its employees, contractors, or representatives who have a need to know such information for purposes of performance under these Terms, provided that such persons are bound by confidentiality obligations no less restrictive than those set forth herein. Buyer shall be responsible for any breach of this Section by its employees, contractors, or representatives.
    Buyer shall promptly notify Seller of any unauthorized use or disclosure of Confidential Information and shall cooperate with Seller in taking reasonable steps to prevent or remedy such unauthorized use or disclosure.
    Upon Seller’s written request, Buyer shall promptly return or destroy all Confidential Information in its possession or control, except to the extent retention is required by applicable law.
    The obligations set forth in this Section shall not apply to information that (i) is or becomes publicly available through no fault of Buyer; (ii) was lawfully in Buyer’s possession prior to disclosure by Seller; or (iii) is independently developed by Buyer without use of or reference to Seller’s Confidential Information.
    If the parties have entered into a separate written non-disclosure or confidentiality agreement (“NDA”) governing the exchange of confidential information, including any relevant Working Papers, the terms of such NDA shall control with respect to the subject matter thereof, and this Section 12 and prior Section 5 shall apply only to the extent not inconsistent with such NDA.
    Buyer acknowledges that unauthorized use or disclosure of Confidential Information may cause irreparable harm to Seller for which monetary damages may be an inadequate remedy, and agrees that Seller shall be entitled to seek injunctive or other equitable relief, in addition to any other remedies available at law or in equity.
  13. Intellectual Property.  Some of Seller’s Goods may be subject to intellectual property licenses, software licenses, or other contractual terms outside of these Terms (“Supplementary Terms”). If applicable, such Supplementary Terms will be identified in the applicable quotation, order acknowledgment, documentation, or other materials accompanying the Goods. If Buyer is uncertain whether any Supplementary Terms apply, Buyer shall contact Seller for clarification prior to use of the Goods.
    All software that is embedded in the Goods or provided separately from the Goods (the “Seller Software”) is subject to the terms of these Terms and any applicable Supplementary Terms. To the extent not granted in Supplementary Terms, Seller hereby grants to Buyer a single, personal, non-sublicensable and nonexclusive license to use Seller Software in or in connection with the Goods for which they are provided to Buyer under the Order(s), to the limited extent necessary for the installation and use of the specific Goods to which it relates, and to copy Seller Software as necessary for those purposes only. No license to use Seller Software in source code form is granted. Buyer must not modify, decode, clone, disassemble, decompile, decrypt, reverse engineer or otherwise attempt to derive or gain access to the source code of any Seller Software. Except as provided in this Section, no license to any Seller Software is granted to Buyer. All updates, modifications and enhancements to Seller Software that are made available to Buyer will be deemed part of that Seller Software and will be governed by these Terms and any applicable Supplementary Terms.
    Documentation (“Seller Documentation”) is provided with some Seller products. All of the Seller Documentation that is provided with the Goods are subject to these Terms. Seller hereby grants to Buyer a single, personal, non-sublicensable, and nonexclusive license to use Seller Documentation to the limited extent necessary for the installation, maintenance and use of the specific Good to which it relates, and to copy Seller Documentation as necessary for those purposes. Except as provided in this Section, no license to any Seller Documentation is granted to Buyer. All updates, modifications and enhancements to Seller Documentation that are made available to Buyer will be deemed part of that Seller Documentation and will be governed by these Terms. Buyer must not remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Seller Software or Documentation, including any copy thereof.
    The use and operation of some Seller Goods requires software not licensed by or provided by Seller. Buyer is solely responsible for obtaining and maintaining any such third-party software and licenses and for complying with the applicable license terms.
    Except to the extent Buyer has supplied specifications, drawings or other intellectual property owned or controlled by Buyer prior to the purchase of the Goods (“Pre-Existing Intellectual Property”) to Seller for the development of Goods specifically for Buyer that incorporate Pre-Existing Intellectual Property, Buyer acknowledges and agrees that as between Buyer and Seller, Seller is the sole owner of all intellectual property associated with Seller’s Goods, including trade secrets, know-how, copyrights, trademarks, service marks, trade dress, and patents, and Buyer will not directly or indirectly do anything to assert an interest in or to claim any rights to Seller’s intellectual property. To the extent Buyer submits Pre-Existing Intellectual Property to Seller for the development of Goods, Buyer hereby grants Seller a non-exclusive license to the extent necessary to develop the Goods for Buyer.
  14. Limitation of Liability.
    1. Limitation of Liability. The total liability of Seller (beyond any express warranty obligation) to Buyer from any cause whatsoever, whether arising under contract, warranty, tort (including negligence), strict liability, products liability or any other theory of liability will be limited to the lesser of: (i) Buyer’s actual damages or (ii) the purchase price paid to Seller for the Good(s) that is the subject of Buyer’s claim.
    2. Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER SHALL NOT HAVE ANY LIABILITY OR OBLIGATION TO BUYER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF ANY GOODS OR PART THEREOF FOR ANY PURPOSE, BY ANY DEFICIENCY OR DEFECT IN ANY GOODS OR PART THEREOF (WHETHER OR NOT COVERED BY ANY WARRANTY), BY THE USE OR PERFORMANCE OF ANY GOODS OR PART THEREOF OR BY ANY FAILURE OR DELAY IN SELLER’S PERFORMANCE HEREUNDER, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR LOSS OF BUSINESS OR PROFIT, WHETHER OR NOT BUYER WILL HAVE INFORMED SELLER OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES.
    3. Time Limitation on Claims. All claims hereunder against Seller must be brought within twelve (12) months after the cause of action arises and Buyer expressly agrees to this 12-month period and waives any other statute of limitations which might apply by operation of law.
  15. Indemnification.
    1. Seller Indemnity for Intellectual Property Infringement. Seller shall defend any suit and shall pay all damages and other costs awarded against Buyer arising out of any claim that any Good, or any part thereof, infringes any United States patent, provided that: (a) such claim arises solely from the design or manufacture of the Good by Seller; (b) Buyer promptly notifies Seller in writing of such claim; (c) Seller is given full control of the defense and settlement of such claim; and (d) Buyer provides all reasonable cooperation requested by Seller in connection therewith. Seller shall have no obligation under this Section with respect to any claim arising from or relating to: (i) the use of a Good in combination with equipment, software, or materials not supplied by Seller; (ii) modifications to a Good not made by Seller; or (iii) the manufacture of a Good in accordance with designs, specifications, or instructions furnished or specified by Buyer. It is expressly understood and agreed that all inventions, discoveries, improvements, and any related patents or intellectual property rights resulting from the design or manufacture of the Goods shall remain the sole and exclusive property of Seller.
    2. Buyer Indemnification. Buyer shall indemnify, defend, and hold harmless Seller and its affiliates, officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, obligations and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Buyer’s use, misuse, or operation of the Goods, or any parts thereof; (b) Buyer’s failure to comply with applicable laws, regulations, or safety requirements; (c) Buyer’s breach of these Terms; or (d) any design, specification, or instruction supplied by Buyer. Buyer’s obligation to defend shall be immediate upon written notice from Seller, shall be conducted by counsel reasonably acceptable to Seller, and Seller shall have the right to participate in the defense at Buyer’s expense. Without limiting the foregoing, Buyer shall assume the sole responsibility and all risk for any and all loss, damage, or injury (including death) to any and all persons (including, without limitation, to employees and agents of Buyer and Seller) and to all property in connection with the performance of its obligations hereunder or any act or omission of Buyer, and shall indemnify, defend, and hold harmless Seller from and against any and all claims, liabilities, expenses (including, without limitation, attorneys’ fees), fines, penalties, damages, and economic losses of whatsoever nature associated therewith, to the fullest extent permitted by law, except for such claims, liabilities, etc. caused by the gross negligence or willful misconduct of Seller. Buyer shall use and shall require its employees and agents to use all safety devices and proper safety operating procedures, including, without limitation, those set forth in any Working Papers and related documents furnished or made available to Buyer. Buyer shall not remove or modify any such safety device.
    3. Assumption of Risk; Waiver of Subrogation. Buyer assumes all risk of loss, damage, or injury to persons or property arising from or related to the possession, use, or operation of the Goods or any parts thereof and hereby releases, waives, and discharges Seller from any and all such claims to the fullest extent permitted by law, except to the extent caused by the gross negligence or willful misconduct of Seller. Buyer further agrees to obtain and maintain insurance sufficient to cover such risks and hereby releases and waives, and shall cause its insurers to release and waive, any rights of subrogation against Seller and its affiliates, officers, directors, employees and agents. Buyer hereby represents that it is authorized by its insurers to grant such release and waiver. 
  16. Force Majeure.  Seller shall be excused from, and shall not be liable for, any failure or delay in the performance of its obligations under these Terms to the extent such failure or delay is caused by or results from events beyond Seller’s reasonable control, including, without limitation, acts of war (declared or undeclared), terrorism, sabotage, insurrection, riot, civil disturbance, fire, flood, earthquake, storm or other act of God, epidemic or pandemic, governmental order or regulation, labor disputes or shortages, shortage or unavailability of raw materials, components, utilities, transportation, or shipping capacity, or any other cause beyond Seller’s reasonable control (each, a “Force Majeure Event”). Seller shall provide Buyer with notice of the occurrence of a Force Majeure Event as soon as reasonably practicable after becoming aware of such event and shall use commercially reasonable efforts to resume performance as soon as practicable. If a Force Majeure Event continues for a period of more than one hundred eighty (180) days, either Party may terminate the affected Order upon written notice to the other, without liability, except for amounts accrued or obligations incurred prior to the effective date of termination.
  17. Governing Law and Jurisdiction. The agreement between Buyer and Seller and the Terms shall be construed to be between merchants and shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without application of the conflict of law principles thereof. Seller intends to comply with all laws applicable to any Good or part thereof delivered; provided, however, that any failure of Seller to so comply shall not be a defense to, or excuse Buyer from, any of Buyer’s obligations to Seller. Any court action which may be brought by any party pertaining to any Order, quote or these Terms shall be brought in federal or state courts having situs in Hennepin County, Minnesota. The Parties consent to personal jurisdiction and venue by state and federal courts in Minnesota for any action pertaining to these Terms or any Order by personal service of process within or without the State of Minnesota. The parties agree that the United Nations Convention on International Sale of Goods shall not apply to or have any force or effect on transactions relating to these Terms or any Goods or part thereof.
  18. Assignment. Buyer’s assignment of its Order, or of any interest therein, or of any right or obligation of Buyer under these Terms, without the prior written consent of Seller, shall be void and shall entitle Seller to cancel such Order and to recover from Buyer any applicable cancellation charges as provided in Section 9. Seller may assign or transfer its rights and/or obligations under these Terms or any Order, in whole or in part, to any affiliate or in connection with a merger, sale of assets, or similar transaction, upon written notice to Buyer and without the necessity of Buyer’s consent.
  19. Export Restrictions. Goods may be subject to export or resale restriction or regulation, and Buyer acknowledges that it will comply with such restrictions and regulations. Any statement as to the Goods country of origin, Export Control Classification Number, or compliance with applicable law is as provided to Seller by its suppliers, and Seller does not warrant its accuracy and will not be liable for any error with regard to same.
  20. Notices. Notices permitted or required to be given hereunder will be given in writing and delivered by registered or certified mail, postage prepaid, return receipt requested, addressed to the respective addresses of the parties that are set forth below. Notices so given will be effective upon receipt by the Party to which notice is given. Notice may also be given by electronic mail to the email address indicated in this Section 20, as the same may be changed from time to time upon written notice. Notice by electronic mail shall be effective upon acknowledgement from the recipient that the recipient has received the electronic mail notice. A general automatic response from the recipient’s email application shall not constitute receipt of notice for purposes of this Section 20. Notices shall be valid if meeting the requirements of this Section 20 and delivered:

If Notice to Seller:

Matsuura Machinery USA, Inc. 
Attention: Cassie Yanke 
Email: [email protected]
325 Randolph Ave.
Suite 100
St. Paul, MN 55102

 

With a copy, which shall not constitute notice, to:

Heidi Carpenter
Fafinski, Mark & Johnson P.A.
Email: [email protected]
One Southwest Crossing 
11095 Viking Drive, Suite 420
Eden Prairie, MN 55344

General.  The Terms and the Order(s) to which these Terms are attached constitute the entire and only agreement between Buyer and Seller respecting the subject matter hereof and supersede all prior agreements or understandings, whether written or oral. Any representation, affirmation of fact, or course of dealing not expressly set forth herein shall not be binding upon either party.

The headings preceding the text of these Terms are for convenience of reference only and shall not affect the meaning or interpretation of any provision. Any failure by a party to exercise any right or remedy under these Terms shall not constitute a waiver of such right or of any other right.

No amendment, modification, or waiver of any provision of these Terms shall be effective unless in writing and signed by a duly authorized officer of Seller. No sales representative or other agent of Seller is authorized to modify or waive any provision of these Terms.

If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be enforced to the maximum extent permitted by law or, if necessary, severed, and the remaining provisions shall remain in full force and effect.

All rights of Seller under these Terms shall inure to the benefit of its successors and assigns, and all obligations of Buyer shall be binding upon Buyer and its heirs, executors, administrators, successors, and permitted assigns. If there is more than one Buyer, their obligations shall be joint and several.