Last updated: November 1, 2024 (applicable to all shipments on or after that date)

1.              Applicability.  This purchase order is an offer by Star Micronics America, Inc. (“Star“) for the purchase of the goods specified on the face of this purchase order (the “Goods“) from the party to whom the order is addressed (the “Seller“) in accordance with and subject to these terms and conditions (the “Terms“; together with the terms and conditions on the face of the purchase order, the “Order“). This Order, together with any documents incorporated by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order.

2.              Acceptance. This Order is not binding on Star until Seller accepts the Order in writing. If Seller does not accept the Order in writing within three business days of Seller’s receipt of the Order, this Order will lapse. Star may withdraw the Order at any time before it is accepted by Seller.

3.              Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date“). Time is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Star may terminate the Order by providing written notice to Seller.

4.              Quantity. If Seller delivers more or less than the quantity of Goods ordered, Star may reject all or any excess Goods. Rejected Goods shall be returned to Seller at Seller’s risk and expense. If Star does not reject the Goods and instead accepts the delivery at the increased or reduced quantity, the Price shall be adjusted on a pro-rata basis.

5.              Delivery Location; Shipping Terms. All Goods shall be delivered to the address specified in this Order (the “Delivery Location“), during normal business hours, in accordance with the terms on the face of this Order. If the face of the Order incorporates any Incoterms, the incorporated version shall be Incoterms® 2020.  Seller shall give written notice of shipment to Star when the Goods are delivered to a carrier for transportation. Seller shall provide Star all shipping documents, including the commercial invoice, packing list, air waybill, bill of lading, and any other documents necessary to release the Goods to Star within 2 business day after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, invoices, correspondence and any other documents pertaining to the Order.

6.              Title and Risk of Loss. Unless otherwise specified on the face of this Order, (a) title passes to Star upon delivery of the Goods to the Delivery Location, and (b) Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.

7.              Packaging. All Goods shall be packed for shipment according to Star’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Star prior written notice if it requires Star to return any packaging material. Any return of such packaging material shall be made at Seller’s expense.

8.              Amendment and Modification. No change to this Order is binding upon Star unless it is in writing, specifically states that it amends this Order and is signed or otherwise accepted in writing by an authorized representative of Star.

9.              Inspection and Rejection of Nonconforming Goods. The Star has the right to inspect the Goods on or after the Delivery Date. Star, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Star rejects any portion of the Goods, Star has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Star requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Star may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 19. Any inspection or other action by Star under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, and Star shall have the right to conduct further inspections after Seller has carried out its remedial actions.

10.           Price. The price of the Goods is the price stated in the Order (the “Price“). Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties, and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Star.

11.           Payment Terms. In the absence of any other agreed payment terms (a) Seller shall invoice Star upon completion of delivery, and (b) payment terms are net 30 days.

12.           Setoff. Without prejudice to any other right or remedy it may have, Star reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Star to Seller.

13.           Warranties. Seller warrants to Star that for a period of 24 months from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Star; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Star. Seller shall, at its own cost and expense, promptly replace or repair any defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Star.

14.           General Indemnification. Seller shall defend, indemnify and hold harmless Star and Star’s parent company, their subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees and Star’s customers (collectively, “Indemnitees“) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses“) arising out of or occurring in connection with the products purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Star’s or Indemnitee’s prior written consent.

15.           Intellectual Property Indemnification. Seller shall, at its sole expense, defend, indemnify and hold harmless Star and any Indemnitee against any and all Losses arising out of or in connection with any claim that Star’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Star’s or Indemnitee’s prior written consent.

16.           Insurance. Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 per occurrence with financially sound and reputable insurers. Upon Star’s request, Seller shall provide Star with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in this Order. Star must be an “additional insured” and the certificate of insurance shall so name Star as an additional insured. Seller shall provide Star with 30 days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Star’s insurers and Star or the Indemnitees. Seller’s insurance shall be primary and non-contributory.

17.           Compliance with Law. Seller shall comply with all applicable laws, regulations and ordinances. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Star may terminate this Order if any government authority imposes antidumping duties, countervailing duties, or any retaliatory duties on the Goods. IMPORTANT: It is Seller’s responsibility to properly label all Goods sold to Star to meet the legal requirements for sale in the U.S.A and Canada. This requirement includes, but is not limited to, California’s Proposition 65 labeling requirements. Seller is solely responsible for the accuracy the labels applied by Seller. Seller is responsible for the omission of required labeling and will reimburse SMA for the cost of any fines and/or (re)labeling. At Star’s discretion, Seller agrees to take back and properly label any nonconforming Goods. Freight charges will be paid by Seller.

18.           Termination. Star may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on 7 days’ prior written notice to Seller. In addition to any other applicable remedies, Star may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Star may terminate this Order upon written notice to Seller. If Star terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Star prior to the termination.

19.           Limitation of Liability. Nothing in this Order shall exclude or limit (a) Seller’s liability under Sections 13(Warranties), 14 (General Indemnification), 15 (Intellectual Property Indemnification), and 21 (Confidential Information), or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.

20.           Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power or privilege shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

21.           Confidential Information. All non-public, confidential or proprietary information of Star, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Star to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Star in writing. Upon Star’s request, Seller shall promptly return all documents and other materials received from Star. Star shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.

22.           Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party’s (the “Impacted Party“) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)“): (a) acts of God; (b) flood, fire, earthquake, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades; (f) national or regional emergency; (g) strikes, labor stoppages or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 7 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under this Section 24, the other party may thereafter terminate this Agreement upon 10 days’ written notice.

23.           Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Star. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Star may at any time assign, transfer or subcontract any or all of its rights or obligations under the Order without Seller’s prior written consent.

24.           Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.

25.           No Third-Party Beneficiaries. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

26.           Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.

27.           Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of Manhattan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

28.           Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

29.           Notices. All notices and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

30.           Severability. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

31.           Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Setoff, Warranties, General Indemnification, Intellectual Property Indemnification, Insurance, Compliance with Law, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.