Additional Terms and Conditions(TRA)
The following terms and conditions are made part of the Trial Run Agreement (TRA) and have been specifically incorporated by reference into the terms of the TRA. When the Customer has signed the TRA, the Customer is deemed to have reviewed and agreed to all the terms in this document.
Prices quoted in the TRA are firm for fifteen (15) days from the date of the quote. Prices quoted are exclusive of all applicable state and federal taxes.
2. Confidential Information
- “Confidential Information” means any tangible or intangible information disclosed to or learned by CUSTOMER, in written, verbal or any other way (such as computer files, magnetic disks, CD-ROMs, models, physical products, etc.) from SFM. Confidential Information includes, but not limited to, business information, business secrets; any documents related to each stage of product development, data and sample, product, product design, drawings, specifications and procedures, material or equipment information, process, formula, innovation, invention, discovery, improvement, technology, research or development, test results; any business-related information, business plans, strategies, forecasts, financial information, budgets, prices and pricing valuation procedures; all the above-mentioned information and documents of SFM’s customers, suppliers and distributors, including the agreements or contracts signed between the PARTIES, expertise or other information that can be used for research and development, manufacturing, sales or operations, and confidential information owned by a third party that SFM has the obligation to keep confidential by contract or according to Confidential Information includes the sales price, machinery and transaction details, the contact info of SFM’s personnel, and any SFM created information and other documents between SFM and CUSTOMER.
- CUSTOMER agrees not to use the Confidential Information disclosed to it by SFM for its own use or for any purpose other than to carry out discussions concerning, and the undertaking of, the business opportunity. CUSTOMER shall not disclose or permit disclosure of any Confidential Information of SFM to third parties or to employees of CUSTOMER receiving Confidential Information, other than directors, officers, employees, consultants and agents who are required to have the information in order to operate or use the machinery. CUSTOMER agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of SFM in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree of care that CUSTOMER utilizes to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care. CUSTOMER agrees to notify SFM in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information of SFM which may come to CUSTOMER’s attention. Notwithstanding the above, CUSTOMER shall have no liability to SFM with regard to any Confidential Information of SFM which CUSTOMER can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of CUSTOMER; (ii) was known to CUSTOMER, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of SFM; (iv) was independently developed by CUSTOMER without any use of the Confidential Information of SFM and by employees of CUSTOMER who have not had access to the Confidential Information, as demonstrated by files created at the time of such independent development; or (v) which becomes known to CUSTOMER, without restriction, from a source other than SFM without breach of this Agreement by CUSTOMER and otherwise not in violation of SFM’s rights.
- CUSTOMER agrees that the Confidential Information is exclusive to SFM and is the secret of SFM. CUSTOMER shall not disclose or divulge Confidential Information to any third party without SFM’s prior written Regardless of the type expressed or medium attached, its ownership and related intellectual property rights belong to SFM.
- CUSTOMER shall exercise the due care of a good administrator in protecting the Confidential Information and the degree of care shall be not less than the same due care of handling its own Confidential Information. CUSTOMER shall take proper management and protection measures, and carefully store and keep Confidential Information to prevent the Confidential Information from unauthorized use, disclosure, or spread.
- In an event of divulgation, loss, theft or seizure of Confidential Information, CUSTOMER shall immediately notify the SFM to that effect and take appropriate measures pursuant to retrieve the Confidential Information or to prevent the improper use of the information from continuing to exist.
- The ownership of the Confidential Information belongs to SFM. CUSTOMER shall stop using Confidential Information immediately upon termination or cancellation of the Purchase Order, suspension of previously planned cooperation, or from the date of receiving written notice from SFM. Upon request, CUSTOMER shall, at its expense, return the originals and the copies of the Confidential Information, or any transcript and copied information in any forms (such as computer storage format or any other media format reproductions) to SFM within fifteen (15) days and shall not retain any copy or original thereof, whether provided by SFM or produced by If the nature of this data cannot be returned to SFM (such as a software program installed on a hardware device), CUSTOMER shall immediately clear and destroy it, and CUSTOMER shall issue an Affidavit Letter to SFM to prove the completion of the destruction.
3.Intellectual Property Rights.
- Both PARTIES understand that unless SFM gives a prior expressed written consent, the disclosure of Confidential Information does not constitute any patent rights, copyrights, trademark rights or other proprietary rights and benefits granted to CUSTOMER, including any intellectual property rights that may be derived from the usage or utilization of this Confidential Information.
- If SFM builds a customized machine according to request and data provided by CUSTOMER, SFM shall own the Intellectual Property right related to the machine and the right to build and sell similar machines to any other customer.
Confidential Information and other intellectual property is provided to CUSTOMER “AS IS”, “WHERE IS” and “WITHOUT FAULT” according to the status quo. SFM does not provide any expressed or implied representation and warranty or guarantees of the Confidential Information, including but not limited to the accuracy, integrity, and function hereof, or non-infringement on the intellectual property rights of others. SFM is also not responsible for the defects of its disclosed Confidential Information.
Nothing contained with the TRA of these Terms and Conditions shall obligate SFM to purchase, sell, authorize, transfer, or dispose of its technology, services, or products, or otherwise enter into any contractor agreement of any kind with CUSTOMER. Nor does any provision contained therein create any legal relationship between SFM and CUTOMER, including but not limited to the creation of any agency, partnership, or employment relationship, or authorize any distribution right or provide any authorization for CUSTOMER to act on behalf of SFM.
- After a sale of machinery is finalized, CUSTOMER agrees that CUSTOMER will NOT dissemble the products purchased from SFM without a prior expressed written consent from SFM. CUSTOMER agrees that CUSTOMER will NOT reverse-engineer any product purchased from SFM to gain trade secrets.
- CUSTOMER agrees that CUSTOMER will NOT manufacture, sell, or market any similar products as the Machine referred in the TRA within 5 years effective from the signing date of the TRA. This agreement applies to the foam cutting, laminating and any other foam converting related machinery as well as any other machinery that CUSTOMER shall test or purchase/purchased from SFM.
4.Breach of Purchase Order and Customer Liability for Such Breach.
- In the event of CUSTOMER violates the TRA, or any Term or Condition thereof, CUSTOMER agrees to compensate SFM for all direct and indirect losses incurred and assume all relevant legal liabilities including but not limited to attorney fees and litigation In the event of such violation, SFM may terminate the TRA.
- CUSTOMER agrees that if its violation or threatened violation of the TRA may cause SFM damage, which may not be enforceable or difficult to be enforced in the future, SFM may apply for provisional attachment, provisional injunction, and other provisional remedies, injunctive relief, or other remedies in the competent courts, to protect its rights and interests.
- CUSTOMER agree that in case of breach of any duties hereunder by CUSTOMER, CUSTOMER shall pay to SFM 50% of the total contract price during the last 12 months as a liquidated damage for the breach if SFM chooses not to ask CUSTOMER for the direct/indirect losses caused by CUSTOMER’S violation of TRA.
5. Agreed Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of the state of Indiana in the United States of America, without giving effect to any choice or conflict of law provisions that would cause application of laws of any jurisdiction other than the state of Indiana. Venue over any proceeding is in the state or federal courts located in Marion County, Indiana, U.S.A.
6. Acknowledgement and Assumption of Risk; Limitations on Liability.
In conjunction with its trial testing of the Machine, the Customer agrees as follows:
- Acknowledgement and Assumption of Risk. The Customer acknowledges that SFM has provided a Notice of Risk regarding operation of the Machine. SFM disclaims any and all responsibility for the safe operation of the Machine by the Customer. The Customer assumes all risk associated with the operation of the Machine.
- User Manual. The trial run of the Machine includes a User Manual which contains information on the safe operation of the Machine. It is the Customer’s responsibility to familiarize themselves with all contents of the User Manual. By its signature below, the Customer agrees to follow all requirements and safety protocol contained therein. The Customer’s failure or refusal to follow the requirements contained in the User Manual will presumptively evidence negligence by the Customer and may void the Agreement
- Indemnity, Release and Hold Harmless. Customer shall indemnify, defend, and hold Seller harmless from and against any and all claims, actions, losses, damages, demands, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, whether a suit or other proceeding is initiated or not, which may arise from, but not limited to, the following events: (i) any representations or misrepresentations made by Customer, (ii) any neglect by Customer or end-users in the operation of the Machine, (iii) Customer’s use of the Machine which is not in compliance with the published specifications herein, or which is not for the intended purposes, (iv) Customer’s modifications or alterations of Merchandise, (v) damage from Customer or end-user misuse, or operation outside of the environmental specifications for the Merchandise, or (vi) any other act, or failure to act, not in accordance with the terms and conditions of this Agreement by Customer, or any other breach by Customer of any representations, warranties, or covenants of Customer under this Agreement.
- Limitations of Liability. Notwithstanding anything contained herein to the contrary, the Customer acknowledges the following limitation as to SFM’s liability under the Agreement:
a. SFM’S LIABILITY WITH RESPECT TO THE MACHINE SHALL BE LIMITED SOLELY TO TRANSPORTATION CHARGE TO PICK UP THE MACHINE FROM THE CUSTOMER’S WORK SITE DURING OR AFTER THE TRIAL PERIOD.
b. SFM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS SFM’S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.
c. UNDER NO CIRCUMSTANCES SHALL SFM, ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THE FURNISHING, PERFORMANCE, OR USE OF ITS PRODUCTS OR DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF SFM OR ANY OTHER PARTY, EVEN IF SFM IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES.
d. IN THE EVENT OF BREACH OF THIS AGREEMENT, IT IS EXPRESSLY UNDERSTOOD THAT THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IS THE REPAIR AND REPLACEMNT OF DEFECTIVE PARTS DURING THE TRIAL PERIOD OR REQUESTING SFM TO PICK UP THE MACHINE FROM CUSTOMER’S WORK SITE. SFM IS NOT LIABLE FOR DAMAGES FOR INJURY TO PERSONS OR PROPERTY OR LOSS OF BUSINESS. IF THE GOODS PROVE SO DEFECTIVE TO PRECLUDE SFM FROM REMEDYING THE DEFECTS BY REPAIR OR REPLACEMENT, THE CUSTOMER’S SOLE REMEDY IS REQUESTING SFM TO PICKUP THE MACHINE FROM THEIR WORK SITE.
e. SFM WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR OTHER DAMAGE OR CLAIM, WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR RELATED TO ANY SFM PRODUCT, OTHER PRODUCTS OR SERVICES PROVIDED BY SFM OR AN AUTHORIZED DISTRIBUTOR, SERVICE TECHNICIAN, OR OTHER AUTHORIZED REPRESENTATIVE OF SFM (COLLECTIVELY,“AUTHORIZED REPRESENTATIVE”), OR THE FAILURE OF PARTS OR PRODUCTS MADE BY USING ANY SFM PRODUCT, EVEN IF SFM OR ANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH DAMAGE OR CLAIM INCLUDES, BUT IS NOT LIMITED TO, LOSS OF PROFITS, LOST DATA, LOST PRODUCTS, LOSS OF REVENUE, LOSS OF USE, COST OF DOWN TIME, BUSINESS GOOD WILL, ANY DAMAGE TO EQUIPMENT, PREMISES, OR OTHER PROPERTY OF ANY PERSON, AND ANY DAMAGE THAT MAY BE CAUSED BY A MALFUNCTION OF ANY SFM PRODUCT. ALL SUCH DAMAGES AND CLAIMS ARE DISCLAIMED BY SFM AND WAIVED BY CUSTOMER. SFM’S SOLE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR DAMAGES AND CLAIMS FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO REPAIR OR REPLACEMENT DURING THE TRIAL PERIOD OR REQUESTING SFM TO PICKUP THE MACHINE FROM THEIR WORK SITE.
7. Miscellaneous Provisions
a. Customer acknowledges that Customer is entering into this Agreement in connection with Customer’s acceptance of the offer for purchase of the Machine and that this Agreement forms an integral part of the transactions contemplated by the Parties and that SFM is entering into the Agreement in consideration of the Customer being bound by terms hereof.
b. Section headings in this Agreement are solely for convenience and shall not be considered in its interpretation.
c. The invalidity or unenforceability of any particular provision of this Agreement will not affect the other provisions of this Agreement, and this Agreement will be construed in all respects as if the invalid or unenforceable provisions were omitted.
d. This Agreement may be amended or modified only by written instrument executed by both SFM and the Customer.
e. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns.
f. The Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute one and the same instrument.
g. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Indiana in the United States of America, without giving effect to any choice or conflict of law provisions that would cause application of laws of any jurisdiction other than the state of Indiana. Venue over any proceeding concerning this Agreement is in the state or federal courts located in Marion County, Indiana, U.S.A.
As SFM prioritizes user and environmental safety, disclosure is made of inherent risks, and it is strongly recommending all customers prepare a safe operating facility and be ready to respond to potential incidents while operating the Machine before the Machine is purchased and installed in the Customer’s facility.
Section I: Notice of Risk and Disclaimer:
Improper use or unauthorized modification of the Machine may cause personal injury, fire, electric shock, machine, and property damage. Please carefully read and follow safe operating guidelines in section II, as well as the User Manual and other materials provided by SFM during and after the Machine installation, such as the check list and the training package.
This unit and production process involves flammable chemicals, electrical connections, high pressure work piece, sharp surface and moving parts that potentially present risk to the operator, the personnel, and properties at the surrounding locations. SFM highly recommends that all the machine operators and overseeing managers carefully study all the materials and be SFM certified before operating the SFM Machine.
Failure to follow the safe operation guidelines or instructions supplied by SFM during and after installation may void the warranty. SFM shall NOT be liable for personal injury, or for any property or machine damage caused by the improper operation of the SFM Machine or other improper actions that does not comply to the provided safe operating guidelines or the Machine instructions and training materials.
Customer shall read all the safe operating guidelines in the section II and acknowledge the risk and SFM’s recommended best practices for the risk management.
Section II: Safe Operating Guideline Recommendations
SFM sets forth the following recommendations regarding safe operation of the Machine and believe they are the best practices to be beneficial to the Customer. Customer is NOT obligated to follow all or any of the recommendations and shall use their own judgement for implementation of the recommendations.
- The customer’s operations should meet all national and local safety codes and regulations, including, but not limited, to those regulations set forth in the Occupational Safety and Health Act (“OSHA”), or such similar federal, state or local law, regulation, or ordinance as may apply in the Customer’s governing country or territory.
- The Customer should engage in risk management planning potential incidents involving hazardous materials, including:
- Communication with local authorities (fire department, emergency response units, environment protections agencies, or other state or local agencies) for reporting and notice requirements of maintaining on-site storage of large amount of chemicals, and for fire hazard involving chemicals, and other incidents, as well as emergency response procedures.
- Familiarization with environmental protection regulations and requirements, and engaging in communication with national and local authorities for compliance with such requirements and for emergency response. Customer should design manufacturing facility and install necessary mitigation equipment to meet all national and local regulations and requirements
- Wiring and Duct Installation
SFM recommends installing wiring and ducts above the ground to reduce the risk of personnel tripping, water damage and electrical leakage/shock. Proper installation should be done by licensed professionals and should meet all applicable safety codes and regulations.
- The installation of electrical appliances, air compressor and other equipment should be performed by a professional familiar with the equipment, and must meet federal, state, and local safety codes and regulations, and any other applicable requirements.
- Fire Hazard
The manufacturing facility should strictly prohibit open flames, and personnel should be properly notified of this policy. All visitors should agree and sign the agreement before entering the manufacturing facility.
Carbon Dioxide (CO2) Fire Suppression System
The static electricity in the operating areas can start a fire. SFM highly recommends the Customer install a CO2 fire suppression system in the die or the whole Machine operation area to control the risk of fire hazard. When applied to a fire, CO2 provides a heavy blanket of gas that reduces the oxygen level to a point where combustion cannot occur. Since carbon dioxide is a gas, there is no clean-up associated with a CO2 fire suppression system discharge. That means minimal interruption to the operation. It is recommended the system be designed to allow the auto, manual or mechanical discharge of CO2, and that the fire suppression system should have sensors to continuously monitor the temperature and fire and sound the siren and alarm lights when a fire starts. It’s also recommended to link the fire system sensors to the machine’s control panel to automatically shut down the machine power when a fire alarm is triggered.
- All personnel should be properly trained on how to operate the Machine, all safety protocols and procedures adopted and in effect at the manufacturing facility, as well as all safety standards, laws, and regulations applicable to machine operation at the manufacturing facility. Particularly, all personnel should be properly trained for handling firefighting equipment and taking appropriate action in case of emergency.
- Occupational health and safety officer
A designated safety officer should oversee the safe operation of the machinery.
- Specialized Operator
A Specialized operators should be assigned to:
- Set up the machine running parameters
- Monitor feeding of raw materials
- Monitor the Temperature and Pressure
- Oversee the entire manufacturing line
- Operating procedures
The detailed operating instructions (the User Manual) will be sent to the customer at installation. All the field operators and the managers overseeing the production should read and understand the instructions carefully and should, at all times, follow the steps established therein avoid any incident caused by inappropriate operations.