This document is an offer or counter-offer by SHINE Technologies, LLC (“SHINE”) to sell the Products and/or Services described in it to the buyer identified herein (“Buyer”) only in accordance with these terms and conditions of sale (the “Terms”) and the SHINE quotation or offer documents to which these Terms are attached or into which these Terms are incorporated (together with the Terms, the “Agreement”); this document is not an acceptance of any offer made by Buyer, and is expressly conditioned upon Buyer’s assent to these Terms. Each order from Buyer shall be subject to these Terms, and acceptance of an order by SHINE and SHINE’s performance under this Agreement is expressly conditioned on Buyer’s assent to these Terms, which assent shall be deemed given by the Buyer’s placement of any order with SHINE or submission to SHINE of any purchase documents referencing the Agreement for the Products and/or Services so described. SHINE hereby objects to any additional or different terms or conditions contained in any order or other communication previously or hereafter provided by Buyer to SHINE. No such additional or different terms or conditions will be of any force or effect. These Terms and the rest of the Agreement will be the entire agreement between SHINE and Buyer on the subject of the transaction described herein; and there are no conditions that are not contained in the Agreement.
Each Buyer order will become firm and accepted upon SHINE’s receipt and acceptance of the order and the down-payment required by the Agreement, if any. All typographical or clerical errors are subject to correction by SHINE. No accepted offer or order may be cancelled or altered by Buyer except upon such terms and conditions as are accepted by SHINE in its discretion in writing; and no changes to these Terms or the Agreement will be binding unless set forth in writing and manually signed by SHINE. This offer may be revoked by SHINE at any time before it is accepted by Buyer, and it shall automatically expire thirty (30) calendar days after its date if Buyer has not accepted it before then.
The Agreement includes a quotation for the sale or placement of SHINE products, as described in the Agreement (“Products”) and/or the performance by SHINE of services, as described in the Agreement, including but not limited to inspection services, installation services, training services or repair or maintenance services (“Services”). The parties understand and agree that certain long-term maintenance services requested by Buyer may be provided under the terms of a separate maintenance or service agreement at SHINE’s discretion. Except where otherwise specified, the “Products” include components, parts, accessories, and Consumables, as such term is defined in the Agreement. All credit and finance terms and any other terms or descriptions set forth in the Agreement are subject to review and approval by SHINE’s management.
Unless expressly stated otherwise on the face of the Agreement, the prices quoted do not include, and Buyer shall be responsible at its expense for securing, all requisite governmental approvals and permits; and Buyer shall be responsible at its expense for compliance with all applicable health and safety laws, ordinances, rules, and regulations (including all seismic regulations) pertaining to the purchase, installation and use of the Products (including without limitation Equipment, accessories, and Consumables) at Buyer’s site.
SHINE may at any time make such changes in design and construction of the Products, components, parts or Services as SHINE deems appropriate, without notice to Buyer. SHINE may furnish suitable substitutes for materials or components unobtainable because of priorities or regulations established by governmental authority, or due to changes in suppliers or the unavailability of materials or components from suppliers. Any Buyer-requested changes are subject to acceptance or rejection in writing by SHINE in its discretion, and any such changes that are accepted by SHINE may impact price and schedule.
If any down-payments or progress payments are required by this Agreement, such payments must be made by Buyer before delivery of the Products. All delivery dates are approximate. Time is not of the essence. Unless otherwise indicated in the Agreement, all Products will be delivered Ex Works the loading dock at SHINE’s facility (Incoterms 2020). Shipping charges are not included in the price quoted for the Products on the face of the Agreement but will be added to the final invoice for the Products unless otherwise agreed to by the parties or unless otherwise provided on the face of the Agreement. Delivery of Products to the carrier shall constitute delivery to Buyer; and regardless of shipping terms or freight payment, Buyer shall bear all risk of loss or damage during transit. SHINE’s Products will be shipped standard ground service, unless otherwise specified by SHINE in the Agreement. Expedited shipping is available upon request at an additional fee. SHINE reserves the right to make delivery in installments. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries. Buyer may request delays in delivery in writing up to sixty (60) calendar days prior to scheduled delivery of the Products, and such requests shall not be unreasonably refused. If Buyer requests delays in delivery within sixty (60) calendar days of the scheduled delivery date, SHINE may invoice Buyer for the Products as if they were delivered on the scheduled delivery date, or SHINE may decline to reschedule delivery and deliver the Products as originally scheduled. Any storage charges for Products whose delivery is delayed will be borne by the Buyer at the relevant then-current market storage prices.
Claims for shortages or other errors in delivery must be made in writing to SHINE within ten (10) calendar days after receipt of shipment; and failure to give such notice within such time period shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Claims for loss or damage to Products in transmit must be made to the carrier, and not to SHINE.
Buyer is responsible for the general maintenance and operation of the Products. Buyer shall keep and maintain Products in good condition and shall keep Products fully insured against loss or damage from the normal hazards of installation, maintenance, and operation until the balance of the purchase price is fully paid in cash to SHINE and any security interest SHINE may hold in the Products has been satisfied. Damage to or loss or destruction of Products after delivery by SHINE to the carrier pursuant to this section shall not release the Buyer from its obligation to make payments as herein provided.
The price of the Products and/or Services, the payment schedule, and the terms of payment shall be as specified in the Agreement. If not so specified, terms of payment for Products and Services shall be net cash, thirty (30) calendar days after the date of SHINE’s invoice. All payment terms set forth in this Agreement are subject to SHINE’s approval of Buyer’s credit, in SHINE’s discretion; and if such approval is withheld, payment shall be due in advance of SHINE’s performance hereunder. SHINE may cancel or delay delivery of any Products or Services in the event of an arrearage in Buyer’s account, provided that SHINE has provided Buyer with written notice of such arrearage and allowed Buyer ten (10) calendar days from the date of notice to cure such arrearage. SHINE may charge interest on past due balances of at eighteen percent (18%) per annum, or the maximum amount permitted by applicable law, whichever is lower, and Buyer shall pay such interest on demand.
Until SHINE collects in full all amounts Buyer owes under the order and any other transactions between the parties, Buyer grants to SHINE a continuing first priority security interest in and a lien upon the Products and the proceeds thereof (including insurance proceeds) to secure the payment of all such amounts and the performance by Buyer of all of its obligations to SHINE pursuant to the order and all such other transactions, and Buyer shall have no right to sell, or otherwise encumber or dispose of the Products until all such amounts have been paid and all obligations have been performed by Buyer. Buyer shall cooperate fully with SHINE and execute any and all financing statements and other documents and instruments and perform any and all other acts which SHINE may consider necessary, desirable or appropriate to establish, perfect, continue, or protect SHINE’s security interest and lien. In addition, Buyer authorizes SHINE and its agents and employees to execute any and all such financing statements, documents, and instruments and perform any and all such acts, at Buyer’s expense, in Buyer’s name and on its behalf. Such financing statement, documents, and instruments may also be filed without the signature of Buyer to the extent permitted by applicable law.
Any manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, value-added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever, imposed by any governmental authority, on or measured by any transaction between SHINE and the Buyer, shall be paid by the Buyer in addition to the prices quoted or invoiced by SHINE, unless and to the extent SHINE specifically states in its quotation that such taxes or charges are included in such price. In the event SHINE is required to pay any such tax, fee, interest, or charge, the Buyer shall reimburse SHINE, therefor on demand. If applicable, Buyer shall provide written evidence of its tax exempt status.
(a) Installation of the Products at Buyer’s site is included in the sale price unless otherwise indicated in writing on the quotation or other Agreement documents. In any instance where installation is to be provided by SHINE, Buyer shall provide SHINE with full, free, timely, and unobstructed access to the installation site. Site preparation, including but not limited to any construction, remodeling, electrical or plumbing requirements, gas supply, or additional environmental controls, is not included in the price and shall be at the sole expense and responsibility of the Buyer. Buyer is responsible for all licensing and permitting related to the Products and their installation and/or operation at Buyer’s site, including any consents, approvals, certificates, notices, and other permissions or authorizations necessary under applicable law. SHINE shall provide relevant documentation regarding Product specifications relating to size, electrical and/or plumbing needs, etc. to assist Buyer with its site preparation activities. SHINE shall not be responsible for any delays in delivery or installation due to delays, defects, or inadequacies in site preparation. Buyer shall specify the premises where the Products are to be installed. SHINE offers no warranty and assumes no liability as to the fitness or adequacy of the premises (or the utilities available at such premises) in which the Products are to be installed, used, or stored. Buyer shall indemnify and hold harmless SHINE from and against any and all losses, liabilities, damages, claims, costs, and expenses arising out of the condition of such premises (or utilities) or out of site preparation activities.
The Products will be installed and tested to verify compliance with SHINE’s published performance specifications, during SHINE’s normal working hours. Installation will be considered complete and Buyer shall be deemed to have accepted the Products upon the earliest of (i) the date sixty (60) calendar days after delivery of the Products to Buyer, unless the parties agree otherwise in writing, (ii) the date the Products are determined by SHINE to have been installed and to have met the applicable SHINE published performance specifications, (iii) the date the Buyer first uses the Products for their intended use, or (iv) the date the Buyer expressly accepts the Products (in any event, “Acceptance”).
(b) SHINE will provide basic Product operation training to Buyer, and the cost of such training is included in the sales price quoted herein unless otherwise indicated in writing on the quotation or other Agreement documents. Only those Buyer employees and agents that complete the Product operation training should utilize or operate the Products. Should SHINE offer any additional training opportunities to Buyer, such additional training shall be provided for an additional fee at SHINE’s then-current rates. Should any travel be required or requested for Buyer’s personnel for any training related to the Products, any travel costs and living expenses for Buyer personnel shall be the responsibility of Buyer. Should any travel be required or requested for SHINE’s personnel for any training related to the Products, any travel costs and living expenses for SHINE personnel will be reimbursed by Buyer.
SHINE warrants each Product manufactured by it and supplied hereunder, specifically including expendable Product parts and goods intended for one-time use, such as, for example, filters, resins, desiccant, gaskets, and seals (together, “Consumables”), to be free from defects in material and workmanship and to meet the applicable SHINE published performance specifications for such Product, for a period of twelve (12) months beginning on the date of Acceptance of such Product. Replacement of Consumables is not covered by this warranty. This warranty shall not apply to any parts, materials, or other goods not manufactured by SHINE and sold on a pass-through basis to Buyer; such parts, materials, and goods are sold AS IS, WITH ALL FAULTS, except that the warranties, if any, of the respective manufacturers of such parts, materials, or goods shall be assigned by SHINE to Buyer upon request, if permissible. SHINE shall have no liability for, and this warranty shall not cover: (i) Products installed by anyone other than SHINE or SHINE’s authorized agent or employee; (ii) Products that have been repaired or altered by anyone without SHINE’s prior written consent; (iii) Products that have been repaired or altered in a manner not in accordance with written instructions provided by SHINE; (iv) Products that have been operated by personnel that have not been duly trained in the proper operation of the Products; and (v) Products that have been subject to abuse, misuse, negligence, or accidents, including but not limited to failure to maintain the Products in strict compliance with all recommended and scheduled maintenance instructions provided by SHINE. The installation of any software or software updates on the Products that are not authorized in writing by SHINE shall void this warranty and relieve SHINE of any further obligations hereunder with respect to such warranty. This warranty does not cover any defect or performance deficiency which is the result of (a) operation or use of the Products (including without limitation the Consumables) outside of any specified environmental, electrical, or performance requirements or standards; (b) power fluctuation or failure at the Buyer’s premises; (c) fires, floods or other causes of the type described in the “Force Majeure” section below; (d) inadequate environmental conditions (including but not limited to inadequate temperature or humidity control, and inadequate or unstable power quality); or (e) any acts, omissions, causes or events beyond the control of SHINE.
SHINE warrants that it shall perform any Services it provides hereunder in a manner consistent with customary practice in SHINE’s industry, and such warranty shall apply to each incident of Service for a period of thirty (30) calendar days beginning upon completion of such incident of Service. Any re-performance or technical support to be performed under the terms of this warranty shall be performed by SHINE between the hours of 8am and 5pm, local time in Wisconsin. All issues under this Services warranty will be resolved remotely via telephone, virtual meeting, or e-mail assistance, when possible. Where onsite technical support is required to resolve an issue under this Services warranty, SHINE will use commercially reasonable efforts to have a representative onsite for any re-performance of Services within forty-eight (48) hours of the determination by SHINE that on-site service is needed within the United States. Remote access or connection to Buyer’s systems may be required in order to determine the issue and if such access or connection is not supplied by Buyer, the warranties in this Section 9 will not apply.
SHINE’s sole and exclusive obligation, and Buyer’s sole and exclusive remedy, for a breach of the above warranties is limited to: (1) in the case of a breach of the Product warranty, repairing or replacing, free of charge, at SHINE’s option, a Product or Product component that is reported to SHINE Service Manager in writing and which is thereafter returned to SHINE with transportation charges prepaid and with a statement of the observed deficiency, not later than two (2) business days after the expiration date of the applicable warranty, and which, upon SHINE’s examination, is found not to conform with the above Product warranty; and (2) in the case of a breach of the Services warranty, re-performing, free of charge, the incident of Service that is reported to SHINE’s Service Manager in writing not later than the expiration date of the applicable warranty and which is found by SHINE not to conform with the above Services warranty. Defective Product or component returns require pre-approval in the form of a Return Merchandise Authorization (RMA). RMA’s can be obtained by contacting SHINE’s Service Manager at +1-608 210-3060 or phoenix-service@shinemed.com.
In the interest of conservation of scarce materials, and of efficient utilization of high value parts, the Products may contain or may be repaired with remanufactured or refurbished parts. Such parts are subject to the same standards of quality control applied to other parts and are covered by the Product warranty in this Section 9. Replacement parts installed in the Products as the remedy under the terms of this warranty shall have a warranty period equal to the longer of the remainder of the original Product warranty period on the Product in question, or three (3) months after the date of installation of the replacement parts. If Buyer transfers, sells, or assigns the Products other than to a majority-owned and controlled affiliate of Buyer during the applicable warranty period, all obligations under this warranty will terminate unless Buyer receives the prior written consent of SHINE for such transfer, sale, or assignment. Upon any transfer or relocation of any Products, the Products must be inspected by SHINE to confirm whether they are in compliance with all technical and performance specifications, and Buyer will notify SHINE in writing of any such transfer or relocation and compensate SHINE for such inspection services at its then-prevailing service rates.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OR TRADE. SHINE SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES WHATSOEVER WITH RESPECT TO PRODUCTS, PARTS, OR SERVICES MANUFACTURED AND/OR FURNISHED BY IT, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. ANY REMEDIES UNDER THIS SECTION 9 ARE SUBJECT TO THE TERMS AND LIMITATIONS IN SECTION 10 BELOW.
Any description of the Products or Services, whether in writing or made orally by SHINE or its employees or agents, and any samples, models, bulletins, drawings, diagrams, engineering sheets, or similar materials used in connection with Buyer’s order, are for the sole purpose of identifying the Products or Services and shall not be construed as an express warranty. Any suggestions by SHINE or SHINE’s employees or agents regarding use, application or suitability of the Products or Services shall not be construed as an express warranty unless confirmed to be such in writing by SHINE.
SHINE’S TOTAL LIABILITY IN DAMAGES OR OTHERWISE FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THE PRODUCTS OR SERVICES PROVIDED BY SHINE SHALL NOT EXCEED THE AMOUNT OF THE PAYMENT, IF ANY, RECEIVED BY SHINE FOR THE SPECIFIC PRODUCT OR SERVICE THAT FORMS THE BASIS FOR THE CLAIMS. SHINE SHALL NOT BE SUBJECT TO AND HEREBY DISCLAIMS ANY AND ALL OTHER OBLIGATIONS AND LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SHINE, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO.
IN NO EVENT SHALL SHINE BE LIABLE FOR ANY PENALTIES OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONTINGENT, OR SPECIAL DAMAGES WHATSOEVER ARISING OUT OF THE PRODUCTS, THE SERVICES, OR THIS AGREEMENT OR ITS PERFORMANCE OR BREACH, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, LOST REVENUES, LOST PROFITS, DAMAGE TO ASSOCIATED EQUIPMENT OR FACILITIES, COSTS OF REPLACEMENT POWER, COSTS ASSOCIATED WITH DOWNTIME, COSTS ASSOCIATED WITH SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES AND ANY SIMILAR DAMAGES, EXPENSES, OR LOSSES, AND REGARDLESS OF HOWEVER CAUSED, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND REGARDLESS OF WHETHER SHINE WAS AWARE OF THE POSSIBILITY OF ANY OF THE FOREGOING; AND SHINE HEREBY DISCLAIMS ALL SUCH PENALTIES, DAMAGES, EXPENSES, AND LOSSES.
Buyer shall indemnify and hold harmless SHINE from and against any and all losses, liabilities, damages and expenses (including, without limitation, attorneys’ fees and other costs of defense) that SHINE may incur as a result of any claim by Buyer or Buyer’s customers or by any third parties arising out of or in connection with the Products and/or Services sold hereunder or their use, except for any such losses, liabilities, damages, or expenses proven to have been caused solely by SHINE’s negligence or willful misconduct.
No claims, regardless of form, arising out of or in connection with the Products or Services provided by SHINE may be brought against SHINE more than one (1) year after the earlier of (i) the date on which the cause of action accrued or (ii) the date on which SHINE’s performance with respect to such Products or Services was completed or terminated.
“Improvements” means any and all revisions, updates, upgrades, new versions, modifications, and derivative works of the Products, regardless of whether they are invented, authored, or made by SHINE, or its employees, agents, or independent contractors, or by Buyer or its employees, agents, or independent contractors, or by a combination of the foregoing. All Improvements and the intellectual property rights therein, are and shall be the sole and exclusive property of SHINE. Buyer herein assigns and agrees to assign to SHINE any and all rights it has or may acquire in Improvements.
All intellectual property that originates from or is developed by SHINE remains the exclusive property of SHINE. SHINE and its licensors retain all intellectual property rights in the Products and in any documentation and software delivered with the Products. All rights in intellectual property not expressly granted hereunder are reserved by the owner of such intellectual property. SHINE hereby grants Buyer a nonexclusive, non-transferable, non-sublicensable, royalty-free right to use the software provided in connection with the Products (“Software”) only in machine readable form and only in combination with the Products with which such Software is provided, commencing upon Acceptance of such Products and for so long as Buyer owns such Products; provided that SHINE may terminate this license in the event of any default by Buyer under the Agreement or otherwise. Buyer agrees to return the Software and any copies thereof to SHINE immediately upon expiration or termination of the license. The license granted to Buyer does not include any right to use the Software for purposes other than operation of the Products with which such Software is provided, nor does it include the right to copy, sell, assign, transfer, or sublicense the Software or prepare derivative works of the Software for any purpose without the prior written consent of SHINE. The Buyer shall not copy, decompile, reverse engineer, reverse assemble, or reverse compile the whole or any part of the Software or Products, and Buyer shall not disclose or provide the Software, or any portion thereof, to any third party. If Buyer modifies the Software in any manner, all warranties associated with the Software (if any) and the Product with which such Software is provided shall become null and void.
SHINE shall provide to Buyer any Product Updates (as defined below) released during the applicable warranty period, and any Product Updates that are necessary for the safe operation of the Products (such as, for example, changes addressing a Product recall) at any time at no additional charge, and Buyer agrees to accept and allow the installation of any such Product Updates to the Products. Product Upgrades (as defined below) released by SHINE (if any) may be made available to Buyer at any time for an additional charge. “Product Update” means a release of software or a change to existing hardware containing substantially only error corrections, and/or performance improvements of existing functionality, but that would not be required for the existing software and/or hardware configuration to perform substantially in conformance with the existing functional specifications. Such Product Updates would not necessarily replace or extend the life of the existing software and/or hardware configuration of the Products. “Product Upgrade” means a new release of software or a change to existing hardware, in each case, containing new features, functionality and/or performance improvements and/or extending the useful life of the applicable Product.
Any sketches, models, designs, specifications, manuals, software, and samples submitted by SHINE, as well as the terms and conditions of this Agreement, are and shall remain the confidential and proprietary property of SHINE (“Confidential Information”), and shall be treated by Buyer as confidential unless SHINE has in writing indicated a contrary intent. No use or disclosure of any such Confidential Information or production techniques revealed thereby, shall be made or permitted by Buyer without SHINE’s express, prior written consent. If a prior mutual confidential disclosure agreement (“Confidentiality Agreement”) has been entered into between the parties, the terms of such Confidentiality Agreement apply to and are incorporated into this Agreement. Any of the foregoing information exchanged hereunder is and will be considered Confidential Information under the Confidentiality Agreement and will be treated in accordance with the Confidentiality Agreement.
Except as may be otherwise expressly provided herein, SHINE does not accept returned Products. A Return Merchandise Authorization (RMA) number must be obtained prior to the exchange/replacement of any Products for any reason. To seek authorization for a return, Buyer must contact SHINE’s Service Manager at (608) 210-3060 or phoenix-service@shinemed.com. SHINE may, at its discretion, determine whether or not it will authorize the return of any Products. Items received by SHINE without prior written approval will not be accepted. Risk of loss or damage to returned Products shall be on Buyer until they are unloaded at SHINE’s facility. Returned Products must be securely packaged to reach SHINE without damage; and excluding Products found to be defective and covered by SHINE’s warranty, any cost incurred by SHINE to put returned Products in marketable condition will be charged to and paid by Buyer.
This Agreement for sale, including these Terms, constitutes the entire agreement between Buyer and SHINE regarding the furnishing of Products and/or Services by SHINE as contemplated herein, and hereby supersedes and replaces any previous agreements, understandings, communications, and negotiations, whether oral or in writing, with regards to such subject matter. THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF WISCONSIN, USA (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). ANY ACTION OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS PERFORMANCE OR BREACH, OR THE PURCHASE/SALE OF PRODUCTS AND/OR SERVICES HEREUNDER, SHALL BE DETERMINED EXCLUSIVELY BY A FEDERAL OR STATE COURT SITTING IN ROCK COUNTY, WISCONSIN, USA AND, IN THE EVENT OF AN APPEAL OR PETITION FOR REVIEW OR CERTIORARI, BY THE COURTS HAVING JURISDICTION TO REVIEW THE DECISIONS OF THE COURTS SPECIFICALLY IDENTIFIED ABOVE. BUYER AND SHINE EACH CONSENTS TO IN PERSONAM JURISDICTION AND TO VENUE EXCLUSIVELY IN SAID COURTS. BUYER SHALL APPOINT A REGISTERED AGENT LOCATED IN WISCONSIN FOR SERVICE OF PROCESS IN ANY SUCH ACTION.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. SHINE RESERVES THE RIGHT TO IMPOSE DIFFERENT OR ADDITIONAL TERMS OF SALE ON INTERNATIONAL SALES OF PRODUCTS AND/OR SERVICES.
In the event of any ambiguity or conflict between or among these Terms, the quotation or offer documents from SHINE to which these Terms are attached or into which these Terms are incorporated (such as, for example, a Maintenance Agreement), and any other agreement or writing signed by SHINE, the order of document precedence shall be as follows and the applicable language from the precedent document shall govern and control:
i. The provisions of the SHINE quotation or offer documents;
ii. The provisions of these Terms;
iii. The provisions of any other agreement or writing signed by SHINE relating to the subject matter in question.
Buyer acknowledges and agrees that SHINE may reference Buyer in presentations to current or potential investors, customers, business partners, or the public that identify locations utilizing SHINE Products and Services and may reference Buyer on its website as a SHINE customer.
Neither party shall be liable for any delay in delivery or other default in performance (except for defaults of payment obligations) that is due to unforeseen circumstances, or to causes beyond such party’s reasonable control and without the fault or negligence of such party. Such causes and circumstances include, without limitation, any act of God, act of the other party, embargo or other governmental act, regulatory, or request, fire flood, severe storm, accident, strike, slowdown, other labor dispute, war, act of terrorism, pandemic, epidemic, public health emergency, shut-down order or other governmental restriction on gatherings, riot, delay in transportation, inability to obtain necessary labor, materials, or manufacturing facilities, unforeseen action or inaction of civil or military authorities, or of contractors or subcontractors not affiliated with such party, or of other third parties, civil unrest, and any other cause or condition beyond such party’s reasonable control and not due to its fault or negligence. In the event of such delay or default, the time for performance shall be extended for a commercially reasonable period of time (at least as long as the period lost because of the force majeure event) and thereafter the other party shall accept performance hereunder. Buyer’s exclusive remedy for other delays and for SHINE’s inability to deliver for any reason shall be rescission of the Agreement.
Buyer’s failure to either make any payment when due or comply with any other term or condition of these Terms or the rest of the Agreement shall constitute default. If Buyer has not cured the default within seven (7) calendar days after SHINE gives written notice of such default, SHINE may, in addition to any other rights and remedies provided herein or under law or equity, terminate the Agreement between itself and Buyer and terminate its obligations to perform thereunder by giving Buyer written notice, which shall take effect upon receipt. In such event, SHINE may pursue at its discretion any damages and recovery of costs and expenses provided herein or allowed under applicable law, in addition to the other remedies that may be available to SHINE.
Buyer may not assign any of its rights or delegate any of its duties hereunder, in whole or in part, whether voluntarily or by operation of law, except to a majority-owned and controlled affiliate of Buyer, without the prior written consent of SHINE.
The failure of Buyer or SHINE at any time to require the performance of any obligation will not affect the right to require such performance at any time thereafter. To be binding, a waiver of any right or remedy must be in writing and signed by the waiving party. The waiver of any remedy with respect to any default will not be taken as a waiver of any remedy for any prior or succeeding default. No limitation or restriction on the remedies available to SHINE is intended by these Terms.
The invalidity or unenforceability of any provision hereof, whether in whole or in part, for any reason, will not affect the remaining provisions, and all Terms will be construed in all respects as if any such invalid or unenforceable provision(s) were omitted. If any part of this Agreement shall be determined to be invalid, illegal or unenforceable, such part shall be reformed, if possible, to conform with any applicable laws. Nothing outside the express terms of this Agreement, including but not limited to course of dealing, course of conduct, prior dealings, and industry standards involving the sale, delivery, installation, use, or service of the Products and Services provided hereunder, shall serve as references in interpreting these Terms.
