Terms and Conditions
1. General. All orders are subject to (i) acceptance by an authorized representative of Seller, (ii) these Terms and Conditions, and (iii) any other terms stated in Seller's quotation. Any terms and conditions originating with Buyer are superseded by the Terms and Conditions and shall not be or become part of the contract between Buyer and Seller unless specifically accepted in a writing signed by a duly authorized representative of Seller. Acknowledgement of the receipt of any order, including signing and returning to Buyer its acknowledgement copy, if any, shall not constitute acceptance by Seller of any additional or different terms and conditions, nor shall Seller's commencement of effort, in itself, be construed as acceptance of an order containing additional or different terms and conditions. Seller shall have no liability until and unless the orders are accepted. Buyer assumes full responsibility for inaccurate, incomplete or faulty data supplied to Seller for Seller's use in the performance of orders. For purposes of the Agreement between the Buyer and the Seller, the “Seller” shall be Nippon Pulse America, Inc. or the legal entity identified in Seller’s quotation as the manufacturer of the Products (as defined below).
2. Quotations and Prices. Prices are subject to change without notice and orders calling for future delivery will be billed according to the price in effect at the time of delivery. Written quotations automatically expire 60 calendar days from the date issued and are subject to termination by notice within that period.
3. Taxes. Prices on the specified products covered by this order (the “Products”) are exclusive of all local, state and federal excise taxes, including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes. Wherever applicable, any tax or taxes will be added to the invoice as a separate charge to be paid by Buyer.
4. Cancellation. An order once placed with and accepted by Seller cannot be cancelled unless both (i) notice of cancellation is delivered by Buyer within 3 days after Seller accepts an order and (ii) consents to the cancellation in writing.
5. Terms of Payment. Terms of payment shall be specified on the invoice. If not so specified, payment terms shall be net 30 days from the date of invoice. All invoices will be dated the day of invoice. Seller shall be entitled to charge interest at the rate of 1.5% per month, or 18% per annum, on any overdue amounts owed to Seller.
6. Delivery. Lead times are subject to change and Buyer acknowledges that delivery dates are approximate. Unless buyer and seller agree in writing otherwise, delivery terms shall be F.O.B. Seller’s facility and in no event will Seller be required to agree to any shipment more than 12 months after receipt of the order by Seller. Special handling charges by carrier and drop shipment shall be paid by Buyer. In the case of parcel post and express shipments, the actual cost of delivery will be charged. In no event shall Seller be held liable for any damages or expenses caused by delays in delivery. In the case of blanket orders (i.e., a single order with multiple delivery dates), in no event will Seller be required to accept any delivery date more than 18 months of receipt of the order unless Seller agrees in writing.
7. Force Majeure. Seller will not be liable for any delay in the performance of orders or contracts, or in the delivery or shipment of Products, or for any damages suffered by Buyer by reason of such delay, if such delay is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, civil unrest, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, transportation delays, or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond its control.
8. Nonconformity. All Products distributed and sold by Seller are to be inspected within ten (10) days after receipt of the Products, and should any of such Products prove to be non-conforming, Buyer shall notify Seller immediately within such 10-day period, stating the full particulars in support of its claim, and Seller will either replace the Products upon return of the non-conforming Products or refund the applicable purchase price. All Products not objected to within ten (10) days of receipt thereof shall be deemed accepted.
9. Limited Warranty. Seller warrants that the Products sold hereunder are free from defects in material and workmanship for one year from the date of manufacture. Seller warrants its Product(s) only to the original purchaser, and in the case of original equipment manufacturers or distributors, only to their original customer. There are no warranties whatsoever on Products built or acquired, wholly or partially, to a buyer’s designs or specifications.
THE EXPRESS WARRANTY IN THIS SECTION 8 AND IN SECTION 9 ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER KNOWN TO SELLER OR NOT), ALL OTHER SUCH WARRANTIES BEING HEREBY EXPRESSLY DISCLAIMED BY SELLER AND WAIVED BY BUYER.
Written notice of claimed defects shall have been given to Seller within the warranty period set forth above, and within thirty (30) days after the date any such defect is first discovered. The Products claimed to be defective must be returned to Seller with RMA (Return Material Authorization) number, with transportation prepaid by Buyer or its customer, with written specifications of the claimed defect. If a warranty claim is valid, Seller shall pay reasonable one-way costs of transportation of the defective Products from either the original destination or the location where the defect occurred, whichever is closest to Seller’s
facility. Under no circumstances shall Seller be liable for removal of Seller’s Products from Buyer’s equipment or re-installation into Buyer's equipment. No person, including any agent, distributor, or representative of Seller, is authorized to make any representation or warranty on behalf of Seller concerning any Products manufactured by Seller, except to refer purchasers to this warranty.
SOFTWARE WARRANTY. Computer software programs that may be included in material or Products sold to Buyer have been designed to perform a given set of tasks as defined in the documentation provided and is offered "AS IS." It is Buyer's responsibility to determine if the features of the software programs are suitable for Buyer's requirements and must confirm that the software programs operate correctly. Buyer understands that such software programs are of such complexity that they may have inherent defects and that Seller makes no warranty that all software features will perform correctly as supplied. For Seller's software utilizing automation servers, improper reading and writing data to the automation server can cause the automation server software to malfunction and may cause the automation server and/or the program writing to the automation server to crash. Improperly reading and writing data to an automation server may cause the device controlled by that automation server to malfunction. Seller shall not be responsible for damage to any device or damage caused by any device due to the improper reading and/or writing of data to an automation server.
10. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, ARISING OUT OF THE PERFORMANCE, DELAYED PERFORMANCE OR BREACH OF PERFORMANCE OF THIS ORDER REGARDLESS OF WHETHER SUCH LIABILITY SHALL BE CLAIMED IN CONTRACT, EQUITY, TORT OR OTHERWISE. SELLER’S OBLIGATION IS LIMITED SOLELY TO REPAIRING OR REPLACING (AT ITS OPTION AND AS SET FORTH IN SECTION 8 AND THIS SECTION 9), AT ITS APPROVED REPAIR FACILITY, ANY PRODUCTS OR PARTS WHICH PROVE TO SELLER’S SATISFACTION TO BE DEFECTIVE AS A RESULT OF DEFECTIVE MATERIALS OR WORKMANSHIP, IN ACCORDANCE WITH SELLER’S WARRANTY AS STATED HEREIN. IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE TOTAL PURCHASE PRICE SET FORTH IN THIS ORDER.
11. CRITICAL COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS. SELLER DOES NOT AUTHORIZE THE USE OF ITS PRODUCTS AS CRITICAL COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS. A CRITICAL COMPONENT IS ANY COMPONENT OF A LIFE SUPPORT DEVICE OR SYSTEM WHOSE FAILURE TO PERFORM CAN BE REASONABLY EXPECTED TO CAUSE THE FAILURE OF THE LIFE SUPPORT DEVICE OR SYSTEM, OR TO AFFECT ITS SAFETY OR
default for credit reasons under the terms of this or any other agreement between Buyer and Seller, Seller shall be entitled, at Seller’s option, to discontinue further performance of all or part of the order, to withhold shipments, in whole or in part, and/or to recall Products in transit, retake same, and repossess all Products which may be stored with Seller for Buyer’s account, without the necessity of taking any other proceedings. Buyer agrees that all Products so withheld, recalled, retaken or repossessed shall become Seller’s absolute property, provided that Buyer is given full credit therefor. The foregoing shall not be construed as limiting, in any manner, any rights or remedies available to Seller under contract, at law or in equity.
12. Special Orders. If any Products shall be sold by Seller to meet Buyer’s particular specifications or requirements and is not part of Seller’s standard line offered by it to the trade generally in the usual course of Seller’s business, Buyer shall defend, protect, and save harmless Seller against all suits at law or in equity and from all damages, claims, and demands for actual or alleged infringement of any United States or foreign patent and shall defend any suit or actions which may be brought against Seller for any alleged infringement because of the manufacture and/or sale of the Products covered thereby.
13. Intellectual Property. Seller retains and protects all of its proprietary and intellectual property rights, including, without limitation, in the Products and any software or other services delivered by Seller, including all designs, engineering details, know-how and other data and materials supplied by Seller and to all discoveries, inventions, patents and other proprietary rights arising out of the work done in connection with the Products or with any and all Products developed as a result thereof, including the sole right to manufacture, market, sell and distribute any such Products. The Buyer warrants that it will not divulge, disclose or in any way distribute or make use of such information, and that it will not manufacture or engage to have manufactured such Products. The Buyer warrants that it has all right, title and interest in all products, drawings, designs, documents and specifications that it provides to Seller. The Buyer shall at its own cost and expense, indemnify, defend and hold Seller harmless from and against any breach of the foregoing warranty.
14. Confidentiality. Each party agrees not to use or disclose the other party’s Confidential Information except to the extent necessary to fulfill an order submitted by Buyer and accepted by Seller. For purposes hereof, a party’s “Confidential Information” means, such party’s drawings, designs, wiring diagrams, trade secrets, source code, object code, business plans, or personal information, or any other information of such party that is identified in writing as “confidential,” “proprietary,” “company private,” or other word of similar meaning at the time of disclosure or within fifteen days thereafter, or which a reasonable person in the industry would understand to be confidential.
15. Acceptance. This is not a firm offer and may be changed or revoked by Seller at any time. Acceptance of this offer is expressly limited to the exact terms and conditions contained herein.
16. Compliance. Orders will be considered complete upon shipment of a reasonable quantity over or under the amount specified in the order when it is impractical to fulfill the exact quantity ordered. Normal tolerances in specifications shall be acceptable.
17. Title, Risk of Loss, Insurance. Title to and risk of loss of or damage to the Products shall pass from Seller to Buyer when they are delivered to the carrier for delivery to Buyer. Buyer, at its sole cost, shall insure the Products against fire, theft, vandalism and similar perils and upon request will furnish Seller certificates as to such coverage.
18. Notices. All notices and other communications required or authorized under these Terms and Conditions shall be given in writing either by personal delivery or overnight courier service addressed as set forth in the related invoice or sales order. Notice of any change of address for the purposes of this Section shall be sent in accordance with the provisions hereof.
19. Compliance With Laws. In performing hereunder, the parties shall comply with all applicable statutes, laws, rules, regulations and ordinances.
20. Remedies. The remedies provided herein shall be cumulative and in addition to any other remedies provided at law or in equity.
21. Assignment. No assignment by either party of any rights, including rights to monies due or to become due hereunder, or delegation of any duties hereunder shall be binding upon the other party without its prior written consent.
22. Non-Waiver. Any failure by either party to enforce any provision hereof shall not constitute a waiver of any other breach of such provision or prejudice the right of either party to enforce the provision at any subsequent time.
23. Headings. Headings used herein are for convenience of reference only and shall not affect the interpretation hereof.
24. Severability. If any provision hereof shall be deemed invalid or unenforceable, the other provisions hereof and thereof shall remain valid and enforceable.
25. Modification. This sales order shall not be modified except in a written form signed by the parties.
26. Governing Law. This sales order shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia, excluding its choice of law rules.
27. Attorneys' Fees. If either party shall be deemed to have breached any provision hereof, the non- breaching party shall be entitled to reimbursement from the breaching party for all costs and expenses of enforcing its rights hereunder, including but not limited to reasonable attorneys' fees.
28. Benefit. This sales order shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.
29. Different or Additional Terms. No terms different than those contained herein or in addition to those contained herein shall be binding upon Seller unless agreed to by Seller in writing.
30. Course of Dealing or Usage of Trade. No prior course of dealing or usage of trade shall be admissible to explain, modify or contradict this contract.
31. U.S. Government Contracts. If this order is issued pursuant to a U.S. Government prime or subcontract, these Terms and Conditions of Sale are hereby modified as required (mandatory flowdown only) to include such terms and conditions of the Federal Acquisition Regulations in effect as of the date of the related order and only as directly applicable based on the value of this order.
32. RESTRICTIONS ON EXPORT. Buyer acknowledges that the Products and related technical data and services related to thereto is or may be subject to United States (U.S.), European Union (EU), or national export control laws, regulations or the like, and agrees that it will not transfer, export or re-export the Products or any technical data, including without limitation any documentation, or information that incorporates, is derived from or otherwise reveals such, without complying with all applicable U.S., EU, or national export control laws, regulations and the like.
33. UNCISG. With respect to transactions to which the 1980 United Nations Convention for the International Sale of Goods (“UNCISG”) would otherwise apply and notwithstanding the venue to which the parties to a particular order may have agreed for dispute resolution, the rights and obligations of the parties hereto including these Terms and Conditions SHALL NOT be governed by the provisions of the UNCISG.
