Terms & Conditions

ALL ORDERS FOR THE MIRAIBIO GROUP("MIRAI") OF HITACHI SOLUTIONS AMERICA, LTD. PRODUCTS ("Products") ARE ACCEPTED BY MIRAI AND PURCHASED BY AND SOLD TO BUYER SUBJECT TO THE FOLLOWING:

1. Exclusive Terms and Conditions. The terms and conditions herein shall be the exclusive terms and conditions governing the ordering, purchase and sale of all Products between MIRAI and Buyer, and no other terms and conditions shall be of any force or effect as respects any such transaction unless Buyer and MIRAI enter into a separately negotiated sales or distribution contract so providing.  Although the parties may use Buyer's purchase orders and other commercial forms for convenience of order processing, such forms shall be used to request scheduling, order quantities, and delivery addresses only, and no legal provisions of any such forms shall apply.  BUYER UNDERSTANDS AND AGREES THAT MIRAI HEREBY REJECTS ANY AND ALL TERMS AND CONDITIONS OF BUYER'S PURCHASE ORDER OR OTHER COMMERCIAL PAPER INCONSISTENT WITH OR IN ADDITION TO THE TERMS HEREOF.

2. Pricing.
(a) Prices shall be as shown on MIRAI's applicable price lists in effect at the time the order is accepted by MIRAI or as MIRAI and Buyer may otherwise agree in writing.
(b) In the event that Buyer receives a quantity discount and subsequently does not accept delivery and pay for the agreed-upon quantity of Products in accordance with the provisions of this Contract, a billback will be calculated separately for each type of unit based on the number of such units ordered and received by Buyer.  Accordingly, Buyer will be charged and will pay MIRAI, within thirty (30) days after receipt of MIRAI's invoice, an amount which represents the difference in unit prices as set forth in MIRAI's price list (i.e., the price per unit normally charged by MIRAI for the number of units actually received by Buyer less the unit price originally invoiced to Buyer) multiplied by the number of units received by Buyer.
(c) This Contract is based on present freight rates and is subject to all present and future tariffs, import and export duties, border taxes and similar import surcharges and taxes which shall be solely at the cost and risk of Buyer.  If any such rates or charges are included in the unit price of the Contract (whether or not shown as separate charges) and are increased pending delivery, Buyer shall pay such increased rates or charges in addition to the unit price in the Contract.  Notwithstanding any other provision in this Contract, in the event that special or additional duties, including antidumping duties, are imposed on Products to be purchased by Buyer, Buyer shall pay such increased rates or charges in addition to the unit price in the Contract.

3. Taxes Prices do not include any taxes, now or hereafter applicable, which apply or may apply to the Products sold or to this transaction. will be added by MIRAI to the sales price where MIRAI is required by law to collect same, and will be paid by Buyer unless Buyer provides MIRAI with a proper tax exemption certificate in form and substance satisfactory to MIRAI.

4. Credit. This order is given and accepted subject to the limit of Buyer's credit, determined at any time by MIRAI, affecting the whole or any unfilled portion of this Contract, whether or not it involves an extension of credit by MIRAI.  MIRAI, in its sole discretion, may, at any time, limit, modify or cancel the credit of Buyer both as to time and amount, and may demand payment in cash before shipment or delivery of the whole or any part of the Products without affecting the obligation of the Buyer to complete the Contract.  Failure of the Buyer to make any such payment after demand by MIRAI may, at the option of MIRAI, be deemed a breach of the entire Contract.

5. Delivery and Shipping.
(a) Unless otherwise provided herein, shipments of Products within the United States shall be delivered F.O.B.  MIRAI's warehouse, and title and liability for loss or damage thereto shall pass to Buyer upon MIRAI's tender of delivery of the Products to a carrier for shipment to Buyer, and any loss or damage thereafter shall not relieve Buyer from any obligation hereunder.  MIRAI shall package Products for shipping in its customary manner.
(b) Delivery may be made in installments.  A default in any payment by Buyer after delivery or offer of delivery of any installment may, at the option of MIRAI, be deemed a default as to the entire Contract.  The date of the bill of lading or any receipt issued by the carrier, or the date of the delivery order shall be conclusive proof of the date of such shipment or delivery to Buyer.  Buyer shall take delivery promptly and Buyer shall pay any demurrage accrued by reason of Buyer's delay or default, or repay same to MIRAI promptly after demand if MIRAI has paid same.
(c) Default or delay by MIRAI in shipping or delivering the whole or any part or installment of the Products under this Contract shall not affect any other portion thereof nor shall it affect any other Contract between Buyer and MIRAI.  Any delivery or shipment of the whole or any part or installment made within thirty (30) business days before or after the date(s) specified therefor shall constitute timely delivery or shipment.
(d) Delivery dates given by MIRAI for orders placed by Buyer shall be considered MIRAI's best estimates only.  To cancel a purchase order for delay in delivery, Buyer must first give MIRAI written notice thereof and MIRAI shall have until the end of five (5) full business days after such notice is actually received by MIRAI in which to deliver, after (but not before) which such order may be canceled if Buyer so requests.

6. Import/Export Regulations.
(a) Neither party shall commit any act or request the other party to commit any act which would violate either the letter or spirit of the export control laws or regulations of the United States, or other export control laws, rules or regulations, as applicable, and neither party shall fail to take any action reasonably within its capacity to assure compliance with such laws, rules or regulations.
(b) Buyer represents and warrants that it shall not, directly or indirectly, export, reexport or transship Products, technology or Software ("the Commodities") in violation of any applicable U.S. export control laws and regulations or any other applicable export control laws promulgated and administered by the government of any country having jurisdiction over the parties or the transaction(s) contemplated herein.
(c) MIRAI shall have the right to refuse to accept Buyer orders for the Commodities, or to refuse to deliver the Commodities to fulfill any previously accepted Buyer order, if MIRAI determines, in good faith, that such proposed sale or other disposition of the Commodities poses an unreasonable risk of a violation of any applicable export control law or regulation.
(d) In the event MIRAI refuses to deliver the Commodities to fulfill previously accepted Buyer orders as set forth in the paragraph immediately preceding, or the necessary export or reexport authorizations are not obtained within a reasonable period of time, MIRAI, at its option, may cancel the order or Contract, without penalty.

7. Inspection and Acceptance.  Buyer shall have a period of thirty (30) days after the date of delivery in which to review, inspect and test the Product.  If Buyer does not give MIRAI written notice of a defect or non-conformity before expiration of that period, then Buyer will be deemed to have accepted the Product.  Product rightfully rejected will, at MIRAI's option, be credited or replaced.  Buyer will reimburse MIRAI for shipment expenses, labor, and testing costs for any Product rejected improperly.

8. Product Warranty.  MIRAI's end-user warranty to the Buyer with respect to all Products is as set forth in the limited warranty statement accompanying each such Product at the time of shipment.  Third party peripherals are covered by the third party manufacturer's warranty only.  THE AFOREMENTIONED WARRANTIES ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, EXCEPT FOR THE ADDITIONAL WARRANTY SET FORTH IN SECTION 10(a) BELOW.

9. Licenses and Proprietary Rights.  Buyer understands and agrees that Buyer shall be bound by License Agreement terms and conditions for specific Products as set forth in the applicable Product inserts accompanying each such Product at the time of shipment.  In the absence of any such inserts, Buyer hereby agrees that all Proprietary Rights in the Products shall remain at all times with MIRAI, where "Proprietary Rights" includes without limitation all patent rights, patent applications, copyrights, trademarks, service marks, trade secrets, goodwill, and any other confidential or proprietary information in connection with MIRAI and/or the Products.  Buyer agrees that it shall not reverse engineer, decompile or disassemble any Products.  Buyer also agrees to leave intact all Proprietary Rights notices on all Products.

10. Patent Indemnification.
(a) MIRAI warrants that the Products furnished hereunder shall be delivered free of rightful claims of any third party of direct infringement of a U.S. patent ("Claims"), subject to the below provisions.
(b) MIRAI agrees to defend and indemnify Buyer against Claims, provided that such defense and indemnity obligations extend only to actual damages for direct infringement of a U.S. patent awarded against Buyer in a suit or proceeding, subject to the following terms and conditions:
      1. MIRAI's obligations shall arise only if Buyer gives MIRAI prompt notice of the Claims; grants MIRAI, in writing, exclusive control over the defense and settlement of the Claims; and provides reasonable information and assistance to MIRAI, at MIRAI's expense, in the defense of the Claims;
      2. MIRAI's obligations will cover only the Product as delivered by MIRAI to Buyer, and not to any modification or addition made by Buyer or third parties;
      3. MIRAI's obligations will not cover: (i) any claim based on the furnishing of any information, service or technical support to Buyer; or (ii) any claim of infringement of any third party's rights arising from use of any Product in combination with other products if such infringement would be avoided by the use of the Product alone; or (iii) any claim based on any Product of Buyer's design or formula; or (iv) any claim that the use of the Product infringes any third party's process patent rights; or (v) any claim of infringement of any third party's rights in respect to circuitry patents, where it is the policy of such third party to offer patent license agreements separately to integrated circuit users.
      4. If an infringement claim is asserted, or if MIRAI believes one likely, MIRAI will have the right, but not the obligation, in its sole discretion: (i) to procure for Buyer the right to use the Product for the use set forth in the Product specifications; or (ii) to modify the Product to avoid such rightful Claim of infringement; or (iii) to accept the Product returned and reimburse Buyer for the purchase price thereof less a reasonable charge for wear and tear.
(c) The sale of any Product hereunder does not convey any license by implication, estoppel, or otherwise, covering combinations of any Product hereunder with other devices or elements.
(d) Buyer shall indemnify and hold MIRAI and its supplier(s) harmless against any expense or liability from claims of patent infringement of any patents related to Products arising from: (i) MIRAI's compliance with specifications or instructions furnished by Buyer; (ii) use of any Products in connection with a manufacturing or other process; or (iii) use of any Products in combination with products not supplied by MIRAI.
(e) THE FOREGOING STATES MIRAI'S EXCLUSIVE OBLIGATION REGARDING CLAIMS OF PROPRIETARY RIGHTS INFRINGEMENT OF ANY KIND, AND IS IN LIEU OF ALL OTHER INDEMNITIES OR WARRANTIES, EXPRESS OR IMPLIED IN CONNECTION THEREWITH.  IN NO EVENT SHALL MIRAI'S TOTAL LIABILITY TO ANY PARTY EXCEED THE PURCHASE PRICE OF THE ALLEGEDLY INFRINGING PRODUCT.

11. Use Restrictions.  Buyer acknowledges and understands that the Products are not authorized for use in or with devices or systems or any other applications that pose a significant risk of personal injury ("Restricted Uses").  Buyer represents and warrants that it shall not engage in any Restricted Uses of the Products and agrees to defend, indemnify and hold MIRAI harmless from any claims based on any such Restricted Uses of the Products.

12. Contingencies.  This Contract is subject to all contingencies beyond the reasonable control of MIRAI and/or its suppliers (whether or not in the contemplation of any of the parties).  In any such event, MIRAI shall have the right, at its election and without any liability to Buyer, to (a) cancel or modify all or any portion of this Contract; or (b) perform the Contract as so restricted or modified to the extent determined by MIRAI in its sole and absolute discretion; or (c) perform the Contract within a reasonable time after the causes for nonperformance or delay have terminated.

13. Cancellation.  Buyer shall not have the right to cancel or reschedule all or any portion or installment of the Products without the written consent of MIRAI.

14. Buyer's Default.  Buyer must make payments when due under this Contract regardless of any claim by Buyer.  If Buyer fails to make any payment(s) when due, MIRAI, at its option, may, as to this Contract and any other contracts as may then exist between Buyer and MIRAI, cancel any or all of any part of this or any other contract between Buyer and MIRAI until Buyer's default is cured and/or MIRAI may cancel any undelivered portions thereof and/or demand immediate payment of all outstanding bills of Buyer.  MIRAI shall not be limited to its rights and remedies against Buyer to those set forth in this Contract, but shall have all of such other rights and remedies as may be available to it under law or otherwise.

15. LIMITATIONS ON LIABILITY.  MIRAI SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE.  THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTIES OR INDEMNITIES, NEGLIGENCE, STRICT LIABILITY, OR MISREPRESENTATION.  NO ACTION MAY BE BROUGHT AT ANY TIME MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION AROSE, EXCEPT THAT AN ACTION MAY BE BROUGHT WITH RESPECT TO PAYMENT AT ANY TIME WITHIN THE APPLICABLE STATUTE OF LIMITATIONS.

16. Entire Agreement; No Waiver; Modification; Governing Law.  This Contract represents the entire agreement between MIRAI and Buyer and supersedes all prior or contemporaneous negotiations or agreements, whether written or oral, between the parties regarding the Products.  No waiver shall be implied from the conduct or failure of any party to enforce its rights.  Except as provided in Section 12 above, this Contract may only be modified through a written document signed by both Parties.  This Contract shall be governed by California law without regard to California's conflict of laws provisions.