OFFER. JLG Industries Japan Co., Ltd. (“Seller”) offer to sell the goods or services designated in the quote or the price list (collectively, the “Quote”) (the “Merchandise”) to Purchaser in the quantities and at the prices specified therein and subject to these Terms and Conditions of Sale (the “Terms and Conditions”). Purchaser acknowledges that it is aware of Seller’s policies not to accept orders from any Purchaser unless Seller has received assurances satisfactory to it that such Purchaser and any end-user customers will provide or have made appropriate arrangements for the initial payment, installation, delivery, normal warranty and post-warranty servicing of the Merchandise sold, leased, or otherwise disposed of by such Purchaser and/or end-user customers, all as provided in the Seller’s then current policies.Seller reserves the right to rescind its acceptance or withhold or defer delivery of all or any portion of an order for any sale if Seller reasonably concludes that any of the Purchaser’s or the end-user customers’ assurances described in the preceding sentence are no longer satisfactory or have not been, are not being, or will not be complied with in a manner satisfactory to Seller.
ACCEPTANCE. Purchaser shall accept an offer by submitting a purchase order within a period designated in the Quote. These Terms and Conditions supersede the terms and conditions of Purchaser’s purchase order or other documents and any additional or conflicting terms or modifications set forth in Purchaser’s purchase order or other documents are hereby expressly rejected unless accepted in a signed writing by Seller. To the extent these Terms and Conditions conflict with the terms and conditions of any master sales agreement, purchase agreement, or other similar document, the parties agree that these Terms and Conditions control.
CANCELLATIONS AND RESCHEDULES BY PURCHASER. Cancellation, and rescheduling are subject to acceptance by the Seller and are also subject to cancellation charges and price increases in accordance with Seller’s then current policies.Any reduction in quantities ordered shall constitute a partial cancellation subject to this Paragraph.
SHIPMENT, RISK OF LOSS AND TITLE. Shipments of the Merchandise hereunder are Delivered At Place (“DAP”) unless otherwise set forth in an invoice and Purchaser assumes all risk of liability for loss, damage, or destruction after delivery of the Merchandise to the delivery address stated in the invoice).Seller retains title, for security purposes only, to all Merchandise until paid in full, and Seller may, at Seller’s option, repossess the same upon Purchaser’s default in payment hereunder and charge Purchaser with any deficiency.If shipment as originally scheduled by Seller is delayed by Purchaser, Seller reserves the right to invoice Purchaser and store the Merchandise at Purchaser’s expense and/or to impose charges and fees in accordance with the Seller’s then current policies.
PAYMENT. All prices for the Merchandise are payable in accordance with these Terms and Conditions and the time of payment specified in each individual invoice. Invoices for the purchase of Merchandise which are paid beyond the terms set forth in the invoice will accrue interest as designated by Seller.
WARRANTY. JLG NEW PRODUCT WARRANTY shall apply to the Merchandise.
CROSS INDEMNIFICATION. Purchaser shall indemnify, defend, and hold Seller, and each of Seller’s parent, subsidiary and affiliated companies, harmless from and against all claims, demands, injuries, causes of action, losses, damages, fines, penalties, or liabilities, and any interest expenses related thereto (collectively “Claims”) arising out of or in any manner related to (i) the use or operation of the Merchandise purchased from Seller; or (ii) any acts or omissions of Purchaser.Seller shall indemnify, defend, and hold Purchaser harmless from and against all liabilities arising out of or related to a defect in design or manufacture of the Merchandise manufactured by Seller. However, Purchaser shall not be entitled to the aforementioned indemnification or defense where Claims by a third party arise out of the negligence, acts, or omissions of Purchaser. Neither Party shall be required to indemnify the other party for damages based on the intentional or willful conduct of the other party. The indemnifying party shall promptly and periodically reimburse the indemnified party for the reasonable costs incurred in defending against the Claim. The indemnified party may not settle or compromise any Claim or consent to the entry of any judgment for which it is seeking indemnification without the prior written consent of the indemnifying party, which the indemnifying party shall not unreasonably withhold, condition, or delay.
Intellectual Property. Unless otherwise set forth herein, Seller hereby grants Purchaser a non-exclusive, non-transferable license to use the Software (as defined below) solely in conjunction with the purpose for which it is provided and without the right to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the Software. Purchaser may transfer the foregoing license to another party which purchases the Merchandise provided the other party accepts and agrees in writing to be bound by the conditions of these Terms and Conditions. Purchaser shall notify Seller of such transfer and such notice must occur within thirty (30) days of the sale. SOFTWARE AND ANY ASSOCIATED DOCUMENTATION IS AND SHALL REMAIN THE EXCLUSIVE PROPERTY OF Seller AND/OR ITS LICENSORS, AND NO TITLE TO, OWNERSHIP OF, OR OTHER INTEREST IN THE SOFTWARE OR DOCUMENTATION IS HEREBY TRANSFERRED TO PURCHASER. For purposes of these Terms and Conditions, “Software” shall mean software, including any updates thereto, provided to Purchaser in standalone form or embedded in goods and/or Merchandise sold by Seller, including, but not limited to, application project files for control programming, design, configuration, and visualization in source code and/or scripting code created by Seller. If Purchaser is in default of any of the terms herein, Purchaser’s license to Software and documentation will automatically terminate. Except as expressly set forth in these Terms and Conditions, no license under any patent, patent application, copyright, trade secret, trademark, trade name, service mark, or other intellectual property right is granted or implied by either party.
Embedded Software. To the extent that Software and/or documentation is embedded in Merchandise sold by Seller, the sale of such Merchandise shall not constitute the transfer of ownership rights or title in such Software and/or documentation, and all references to “sale” or “sold” of any Software or documentation shall be deemed to mean a license. In connection with Software and documentation: (i) Seller and its suppliers reserve all right, title and interest, together with all intellectual property rights thereto, in all Software and documentation provided or made available to Purchaser, and (ii) no other express or implied license, right or interest in or to any patent, patent application, copyright, trade secret, trademark, trade name, service mark or other intellectual property right is granted hereunder. Seller and its suppliers reserve the right to, in its sole discretion, access, update, and modify the Software at any time, including modifications that prevent the Merchandise or Software from connecting to cellular or Internet services. To the extent Merchandise sold by Seller contains Software, Purchaser agrees that Seller may access the Software.Purchaser agrees that Seller may collect data regarding such Merchandise itself and the operation of the Merchandise, including, but not limited to, its location, fault codes, status number of cycles, hours of use, and driving speed (“Equipment Asset Data”). Purchaser agrees that Equipment Asset Data or any other data of Purchaser and/or any data of any third-party may be transmitted through or across the Merchandise sold by Seller hereunder.Purchaser further agrees that Equipment Asset Data or any other data of Purchaser may be transmitted through or across third-party-owned Merchandise.Seller will take reasonable steps to protect Equipment Asset Data or any other data of Purchaser that is transmitted through or across third-party-owned Merchandise from unauthorized access by any third parties. Purchaser grants Seller a perpetual, irrevocable, worldwide, right and license to use Equipment Asset Data for Seller’s business purposes, including and to conduct research to develop and improve Seller products and services, to perform as described herein, and to provide connected products related services.
EXCUSABLE DELAY/FORCE MAJEURE. Any delivery dates agreed to by Seller are only approximate and are subject to change by Seller. In any event, Seller shall not be liable for delays or failures in performance of an order or default in delivery arising out of or resulting from causes beyond its reasonable control and without its fault or negligence.Such causes include, but are not restricted to:acts of God, the Purchaser, or any branch of government or of the public enemy; fire; flood; strikes or labor matters; epidemics; nation/prefecture wide stay-at-home orders; freight embargoes; weather; accidents; war; insurrection or riot; failures of and delays by carriers; transportation or utility shortages or curtailments; or default of suppliers or subcontractors due to any such causes.In the event of delay for any such cause, the specified delivery date shall be extended for a reasonable length of time, but not less than the period of delay.Delay in delivery of any installment shall not relieve Purchaser of its obligation to accept remaining deliveries.In no event shall Seller be liable for any incidental or consequential damages arising out of any failure to deliver any Merchandise to Purchaser, any delay in the delivery thereof, or any rejection or revocation of acceptance thereof by Purchaser.
CHANGES BY SELLER. Seller reserves the right to make changes in design or additions to or improvements in the Merchandise without liability and to install such change, addition or improvement in any Merchandise previously manufactured.
BANKRUPTCY. In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Purchaser, or in the event of the appointment, with or without Purchaser’s consent of an assignee for the benefit of creditors or of a receiver, or if Seller shall reasonably believe that Purchaser is unable to meet Purchaser’s debts as they mature, Seller shall be entitled to cancel all of Seller’s obligations under this offer and any agreement resulting herefrom, or any unfulfilled part of any such agreement without any liability of Seller whatsoever.Any cancellation shall be without prejudice to Seller’s rights.
FORBEARANCE;NO WAIVER. Forbearance or failure of Seller to enforce any of the terms and conditions stated herein, or to exercise any right accruing from default of Purchaser, shall not affect or impair Seller’s rights should such defaults continue; nor shall such forbearance or failure be deemed a waiver of Seller’s rights in case of any subsequent default of Purchaser.
SEVERABILITY. If any term, provision or restriction of this offer, these Terms and Conditions, or any agreement resulting herefrom is held by a court of competent jurisdiction to be unenforceable or invalid, the offer, Terms and Conditions or agreement shall be ineffective only to the extent of such provision and the enforceability or validity of the remaining provisions shall not be affected thereby.
ASSIGNMENT; CHANGE OF CONTROL. Purchaser shall not directly or indirectly assign, transfer or delegate any of its rights or obligations under these Terms and Conditions, or any agreement in which they are incorporated, to any other party, including in connection with or as a result of any sale of all or substantially all of Purchaser’s business or assets, whether by merger, reorganization, acquisition, sale, operation of law, or otherwise. Any Seller-authorized assignment of an agreement incorporating these Terms and Conditions must be in writing, and will be conditioned upon the assumption of all terms set forth in the original signed quote or purchase order issued hereunder, without modification or amendment in any manner whatsoever. Any purported assignment in violation of this Paragraph shall be null and void.
HEADINGS. Paragraph headings are for convenience only and shall not be considered in construing or interpreting these Terms and Conditions.
APPLICABLE LAW. This offer and any agreement resulting herefrom shall be interpreted, and the rights and liabilities of the parties hereto determined in accordance with the laws of Japan without giving effect to any choice of law or conflict of law provision or rule.In addition to the rights and remedies reserved herein, Seller shall have all the rights and remedies available under law.
FORUM SELECTION. A party must bring any legal proceeding arising under or relating to these Terms and Conditions or any offer or agreement in the Tokyo District Court . Purchaser hereby expressly consents to the jurisdiction of such courts and waives any defenses or objections related to the jurisdiction and venue of such courts.
COMPLETE AGREEMENT. This offer, upon acceptance, supersedes all previous agreements, if any, between the parties, as respects the Merchandise, and it constitutes the sole, final and entire contract between them as respects the Merchandise.No change, amendment, or modification or waiver of the terms and conditions set forth herein shall be effective unless made in writing signed by both parties.