Apollo Seiko Ltd. (APOLLO SEIKO)
Terms and Conditions of Sale
(Effective June 1, 2019)
PLEASE READ THESE TERMS AND CONDITIONS OF SALE CAREFULLY.
APOLLO SEIKO’S PERFORMANCE UNDER, OR WRITTEN ACKNOWLEDGMENT OF CUSTOMER’S PURCHASE ORDER OR WRITTEN RELEASE UNDER A VALID BLANKET ORDER IS AN ACCEPTANCE ONLY FOR THOSE ROBOTIC SYSTEMS AND CONSUMABLE PRODUCTS (COLLECTIVELY THE “PRODUCTS”) AND/OR SERVICES WITH A SCHEDULED DELIVERY DATE SHOWN ON THE FRONT OF THE ORDER OR ON A WRITTEN RELEASE FROM CUSTOMER, OR AS MAY BE ACKNOWLEDGED BY APOLLO SEIKO IN WRITING.
ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS AND CONDITIONS TOGETHER WITH ANY ADDITIONAL PRINTED TERMS AND CONDITIONS CONTAINED IN QUOTATIONS, OFFERS OR ORDER ACKNOWLEDGEMENTS PROVIDED BY APOLLO SEIKO TO CUSTOMER AND CONSTITUTE THE “GOVERNING TERMS”, ALL OF WHICH ARE IN LIEU OF, REPLACE AND SUPERSEDE ANY AND ALL OTHER CONFLICTING TERMS AND CONDITIONS SET FORTH ON CUSTOMER’S PURCHASE ORDER, APPLICABLE SPECIFICATIONS, OR ANY OTHER DOCUMENT PROVIDED BY CUSTOMER. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS OR CONDITIONS PROVIDED BY CUSTOMER, EITHER BEFORE OR AFTER ISSUANCE OF THIS ACKNOWLEDGMENT, ARE HEREBY REJECTED BY APOLLO SEIKO, AND ANY SUCH DOCUMENT SHALL BE WHOLLY INAPPLICABLE TO ANY SALE OF PRODUCTS AND/OR SERVICES UNDER THESE TERMS AND CONDITIONS AND SHALL NOT BE BINDING IN ANY WAY ON APOLLO SEIKO. IF CUSTOMER HAS NOT OTHERWISE ACCEPTED THESE TERMS AND CONDITIONS, THEN CUSTOMER’S ACCEPTANCE OR DELIVERY OF, OR PAYMENT FOR, THE PRODUCTS AND/OR SERVICES SHALL CONSTITUTE CUSTOMER’S ACCEPTANCE OF THESE GOVERNING TERMS. THE PARTIES ACKNOWLEDGE AND AGREE THAT IT IS THEIR INTENTION THAT THE “BATTLE OF THE FORMS” § 2-207 OF THE UNIFORM COMMERCIAL CODE SHALL NOT APPLY TO THESE TERMS AND CONDITIONS. NO WAIVER OR AMENDMENT OF ANY OF THE PROVISIONS OF THESE TERMS AND CONDITIONS SHALL BE BINDING ON APOLLO SEIKO UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF APOLLO SEIKO.
Any quotation or pricing proposal (hereinafter a “Quotation”) is only valid if in writing and then only for thirty (30) days from the date of the Quotation unless otherwise set forth in such Quotation. All Quotations by Apollo Seiko are subject to change or withdrawal without prior notice to Customer unless otherwise specifically stated in the Quotation. Apollo Seiko shall have no obligation to provide, deliver, or sell products covered by Apollo Seiko’s Quotation unless and until Apollo Seiko issues an order acknowledgement or upon the shipment of products by Apollo Seiko.
3. Credit Approval
All Quotations and shipments to be made hereunder are subject to the approval of Apollo Seiko’s accounting department. If, in Apollo Seiko’s sole judgment, the financial viability or responsibility of Customer is or becomes unsatisfactory, then Apollo Seiko may, at its option and without prejudice to any of its other remedies hereunder or at law or equity, (a) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, and / or (b) terminate all purchase orders, blanket orders, or releases of Customer.
Product prices are in U.S. Dollars and are firm for the thirty (30) day period following issuance of the Quotation, and not subject to any trade, early payment or other discounts and do not include any taxes, duties or costs of special packaging and insurance, unless otherwise specifically agreed to by Apollo Seiko in writing. Customer shall pay these charges when applicable, and if assessed to Apollo Seiko, Customer shall indemnify and hold Apollo Seiko harmless from all such charges. Applicable taxes may be collected by Apollo Seiko from Customer, however Customer may provide Apollo Seiko with an appropriate tax exemption certificate acceptable to the applicable taxing authorities. Customer may not offset for any claim against Apollo Seiko, including any claim for products returned by Customer for repair or correction of defects. Apollo Seiko reserves the right to make adjustments to pricing, products and service offerings for reasons including, but not limited to, changing market conditions, product discontinuation, product unavailability, and errors in advertisements.
5. Payment Terms
Unless otherwise agreed upon, payment terms for Robotic Systems are: one-third (1/3) due upon receipt of invoice, one-third (1/3) due upon delivery, and the remaining balance due net thirty (30) days following delivery. For all other products or services, terms of payment are net thirty (30) days after the date of shipment/completion. If Customer delays shipment, the payment due date will be based on the date Apollo Seiko is prepared to make shipment, and products held for Customer shall be held at Customer’s expense and risk of loss. Delinquent accounts shall bear interest beginning on the first day after the payment due date, without any requirement for Apollo Seiko to provide notice, on the unpaid balance at the lesser of (a) of twenty-five percent (25%) per annum, or (b) the maximum legal rate. In the event of a payment default, Customer will be responsible for all of Apollo Seiko’s costs of collection, including court costs, filing fees and attorney’s fees.
Purchase Order shall mean: (a) a specific order of firm quantity of products or (b) a valid blanket purchase order issued by Customer to Apollo Seiko under which written paper or electronic releases are issued setting forth product delivery requirements. Orders are not binding upon Apollo Seiko until accepted by Apollo Seiko in writing or upon undertaking performance and entry into Apollo Seiko’s system. Apollo Seiko does not guarantee same day fulfillment of any order.
Customer may place firm orders calling for delivery times, quantities and other criteria outside of the parameters specified including made to order goods or those no longer supported due to discontinuation (“Special Orders”). Special Orders are not agreed upon unless expressly accepted by Apollo Seiko in writing. Apollo Seiko will use reasonable efforts to comply with Special Orders but will not be in default if it is unable comply. Additional costs to be paid by Customer that are related to Special Orders will be as agreed upon between the authorized representatives of Apollo Seiko and Customer. All sales of Special Ordered items are final; no cancellations will be accepted after a Special Order has been placed; and no returns will be accepted.
7. International Orders
Due to the added documentation required to ship to International destinations, all International shipments may take additional time to process and ship. Apollo Seiko may also place additional order holds at its discretion for payments that are flagged as suspicious or high-risk. All products will be shipped with an invoice reflecting their correct value as required by federal law. Customer is responsible for all brokerage fees, taxes, customs duties and other charges that may be payable in the destination country.
8. Shipping Title, Risk of Loss, and Delivery
All shipping dates are approximates, and are based upon prompt receipt of all necessary information from Customer. Apollo Seiko’s extensive line of products requires close coordination of Customer’s requirements with the Apollo Seiko’s production schedules to avoid possible delays in shipments. Accordingly, Apollo Seiko reserves the right to ship in advance of the shipping date, or in single or multiple shipments. Unless otherwise agreed upon, all products will be shipped F.O.B., point of shipment, and title in and the risk of loss to such products will pass to Customer upon Apollo Seiko’s delivery to the carrier at the point of shipment. Thereafter, Customer will be solely responsible for and bear the entire risk of any loss or damage to the products. Any products that Customer requires to be shipped later than thirty (30) days from the date of any order acknowledgement are subject to price changes made after the date of the acknowledgement of the date of shipment. Notwithstanding transfer of title and risk of loss to Customer, Customer hereby grants to Apollo Seiko a purchase money security interest in all products sold hereunder, including all proceeds, additions and accessions thereto.
9. Inspection / Non – Conforming Shipments
Apollo Seiko grants Customer the right to inspect the products for a period of five (5) business days immediately following delivery (“Inspection Period”). Customer must notify Apollo Seiko of any products that do not conform to the terms applicable to its order within the Inspection Period, and afford Apollo Seiko a reasonable opportunity to inspect such products and cure any nonconformity. If Customer fails to provide Apollo Seiko with a written report specifying the non-conformity (a “Non-Conformance Report”) within the Inspection Period Customer shall be deemed to have accepted such products. Customer will have no right to return any product without Apollo Seiko’s prior written authorization. Any return authorized by Apollo Seiko must be made in accordance with Apollo Seiko’s return policies then in effect and must be accompanied by a Non-Conformance Report. Apollo Seiko, in its sole discretion, may reject any return of the products not approved by Apollo Seiko in accordance with this paragraph or otherwise not returned in accordance with Apollo Seiko’s then current return policies.
10. Cancellation and Return Policy
Once accepted by Apollo Seiko, Purchase Orders may not be canceled, reduced, changed, or suspended by Customer without Apollo Seiko’s written consent and payment of reasonable and proper cancellation charges determined by Apollo Seiko. This includes all direct and indirect costs, expenses, and overheads (including a reasonable profit) incurred by, or in direct or indirect connection with the order and will be due and payable to Apollo Seiko upon cancellation approval by Apollo Seiko. Cancellation charges will be assessed against all work in progress, development costs, and inventory. Refused orders and/or returns may also be subject to a 25% restocking/handling charge. No returns or exchanges will be accepted if the products are Special Orders.
APOLLO SEIKO WARRANTS THE SERVICES PERFORMED HEREUNDER SHALL BE PERFORMED IN A WORKMANLIKE MANNER CONSISTENT WITH INDUSTRY STANDARDS. APOLLO SEIKO FURTHER WARRANTS ONLY THAT THE PRODUCTS CONTRACTED FOR HEREUNDER (A) WILL CONFORM TO THE DESCRIPTION ON THE FACE OF THE QUOTATION, INVOICE OR PACKING LIST, AND IN THE CASE OF ROBOTIC SYSTEMS (B) WILL BE FREE OF DEFECT IN WORKMANSHIP OR MATERIALS FOR A PERIOD OF TWELVE (12) MONTHS FROM THE DATE OF DELIVERY, NORMAL WEAR AND TEAR EXCEPTED. IN THE CASE OF CONSUMABLE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, SOLDERING TIPS, SOLDER WIRE FEED TUBES, AND OTHER SPARE PARTS, APOLLO SEIKO WARRANTS SUCH CONSUMABLE PRODUCTS SHALL BE FREE OF DEFECT IN WORKMANSHIP AND MATERIALS AS OF THE DATE OF DELIVERY. USE OF CONSUMABLE PRODUCTS NOT MANUFACTURED OR SUPPLIED BY APOLLO SEIKO IN CONNECTION WITH ROBOTIC SYSTEMS VOIDS THE FOREGOING WARRANTY.
APOLLO SEIKO SHALL HAVE THE RIGHT EITHER TO REPLACE OR REPAIR ANY DEFECTIVE PRODUCTS OR RE-PERFORM ANY NONCONFORMING SERVICES (TO THE EXTENT SUCH DEFECT IS PROXIMATELY CAUSED BY APOLLO SEIKO), TO REFUND THE CONTRACT PRICE, REPLACE (OR PAY FOR REPLACEMENT OF) DAMAGED PARTS, OR TO GRANT A REASONABLE ALLOWANCE ON ACCOUNT OF SUCH DEFECTS, AND APOLLO SEIKO’S LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR DEFECTIVE PRODUCTS SHALL BE LIMITED SOLELY TO RE-PERFORMANCE, REPLACEMENT, REPAIR, REFUND OR ALLOWANCE AS APOLLO SEIKO MAY ELECT.
APOLLO SEIKO SHALL BE GIVEN A REASONABLE OPPORTUNITY TO INVESTIGATE ALL NON-CONFORMANCE CLAIMS.
12. DISCLAIMER OF FURTHER WARRANTIES
EXCEPT AS SET FORTH ABOVE, APOLLO SEIKO MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE) OR NON-INFRINGEMENT WITH RESPECT TO ITS PRODUCTS.
13. LIMITATION OF LIABILITIES AND REMEDIES
APOLLO SEIKO SHALL NOT BE LIABLE, AND CUSTOMER WAIVES ALL CLAIMS AGAINST APOLLO SEIKO FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, SCRAP, DOWNTIME PRODUCTION DELAYS OR OTHER COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON APOLLO SEIKO’S NEGLIGENCE, BREACH OF WARRANTY, OR STRICT LIABILITY, OR ANY OTHER CAUSE OF ACTION. APOLLO SEIKO WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY RESULTING FROM (I) THIRD PARTY INSTALLATION ACTIVITIES; OR (II) THE INSTALLATION, HANDLING, USE, STORAGE, OR RESALE OF THE PRODUCTS, (III) OR IN COMBINATION WITH OTHER SUBSTANCES, OR (IV) OTHERWISE. IN NO EVENT SHALL APOLLO SEIKO’S ENTIRE LIABILITY EXCEED THE PURCHASE PRICE WITH RESPECT TO THE SPECIFIC PRODUCTS/SERVICES IN WHICH THE CLAIM IS MADE.
14. Ownership of Intellectual Property
All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents, etc. and applications therefore, and other information or intellectual property disclosed or otherwise provided to Customer by Apollo Seiko and all rights therein (collectively, “Intellectual Property”) will remain the property of Apollo Seiko and will be kept confidential by Customer in accordance with these Terms and Conditions. Customer shall have no claim to, nor ownership interest in, any Intellectual Property and such information, in whatever form and any copies thereof, shall be promptly returned to Apollo Seiko upon written request from Apollo Seiko. Customer acknowledges that no license or rights of any sort are granted to Customer hereunder in respect of any Intellectual Property, other than the limited right to use Apollo Seiko’s proprietary products purchased from Apollo Seiko. Unless otherwise agreed to in a writing signed by an Authorized Representative of Apollo Seiko any Intellectual Property developed by it or mutually with Customer in the course of providing, preparing to provide, or in any way related to the production/development of products shall be owned by Apollo Seiko.
15. Confidential Information
Information furnished or made available by Apollo Seiko (including, but not limited to, information disclosed prior to the applicability of these Terms and Conditions) to Customer in connection with the subject matter of these Terms and Conditions or of Customer’s Purchase Order shall be held in confidence by the Customer. Customer agrees not to use or disclose such information without the prior written consent of an Authorized Representative of Apollo Seiko. The obligations in this section do not apply to information that (a) at the time of disclosure was or becomes, generally available to the public by no breach by the Customer of any obligation herein, (b) the Customer can show by written records was in its possession prior to disclosure by Apollo Seiko, or (c) is legally disclosed to Customer by a third party having no direct or indirect confidentiality obligation to Apollo Seiko respecting such information.
Apollo Seiko may revise these Terms and Conditions at any time by posting them to its website, and Customer acknowledges and agrees any updates to these Terms and Conditions shall be binding upon Customer. Apollo Seiko’s Terms and Conditions may be found at https://www.apolloseiko.com/terms-and-conditions-of-sale.
17. Force Majeure
Apollo Seiko shall not be liable for failure in delivery of any products or performance of services due to (a) fires, floods, other natural disaster, strikes, or other labor disputes, accidents, sabotage, terrorism, war, riots, financial distress of a supplier or other disruption in Apollo Seiko’s supply chain, acts of precedence or priorities granted at the request or for the benefit, directly or indirectly, of any federal, state or local government or any subdivision or agency thereof, delays in transportation or lack of transportation facilities, restrictions imposed by federal, state or local laws, rules or regulations; or (b) any other cause beyond the reasonable control of Apollo Seiko. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be useful to enable Apollo Seiko to perform. Apollo Seiko may, during any period of shortage due to any of the above circumstances, allocate its available supply of resources to provide products among itself and its Customers in such manner as Apollo Seiko, in its judgment, deems fair and equitable.
18. Assignment and Delegation
No assignment of any rights or interest or delegation of any obligation/duty of Customer under these Terms and Conditions, Apollo Seiko’s Quotation, order acknowledgement, invoice, or Customer’s Purchase Order may be made without prior written consent of Apollo Seiko’s Authorized Representative. Any attempted assignment or delegation will be wholly void and totally ineffective for all purposes.
No failure of Apollo Seiko to insist upon strict compliance by Customer with these Terms and Conditions or to exercise any right accruing from any breach of Customer shall impair Apollo Seiko’s rights in case Customer’s breach continues or in case of any subsequent breach by Customer. Waiver by Apollo Seiko of any breach by Customer of these Terms and Conditions shall not be construed as a waiver of any other existing or future breach.
20. Limitation of Actions
Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these Terms and Conditions by Apollo Seiko shall be barred unless commenced by Customer within one (1) year from the accrual of such cause or action.
21. Dispute Costs
In any litigation or arbitration between Apollo Seiko and Customer concerning these Terms and Conditions, the prevailing party is entitled, in addition to such other relief that is granted, to a reasonable sum for their attorney’s fees, provided that if each party prevails in part, such fees shall be allocated in such manner as the court or arbitrator shall determine.
If any provision of these Terms and Conditions are determined to be illegal or unenforceable, the remaining provisions of the Terms and Conditions shall not be affected thereby.
23. Governing Law
These terms and conditions are, and any sale or services performed hereunder shall be governed by the laws of the State of Michigan, without regard to conflicts of laws rules. Apollo Seiko and Customer expressly agree that the United Nations Convention on contracts for the international sale of products shall not apply to the transaction between them. Any arbitration, enforcement of an arbitration award or litigation will be brought in Berrien County, Michigan and Customer hereby consents to the jurisdiction of the federal and state courts located in Berrien County, Michigan and waives the right to change venue. Customer further consents to the exercise of personal jurisdiction by any such court with respect to any such proceeding.
24. Entire Agreement
These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous oral and written agreements and understandings regarding the subject matter hereof. The Terms and Conditions shall not be supplemented or contradicted by course or dealing, usage of trade or course of performance under this or other agreements. No purchase order or other document from Customer shall contain any terms concerning the purchase and sale of products or services not contained in the Terms and Conditions of sale or terms modifying any terms contained in the Terms and Conditions. To the extent any such terms are contained in any purchase order or other document from Customer, such terms shall not be binding on either party and shall be superseded by these Terms and Conditions. These Terms and Conditions may not be modified or amended except by written agreement which specifically references these Terms and Conditions and which is signed by both parties.
How to Contact Apollo Seiko
For questions or comments, please contact Apollo Seiko’s Customer Support Department at:
4819-5463-8999, v. 5