General Terms and Conditions of Purchase
The terms and conditions of purchase (“Terms”) contained herein shall apply to all purchase orders made by Nagase America Corporation (“Buyer”). Seller’s acceptance of this offer is expressly limited to these Terms. Any additional or different terms, including but not limited to those on Seller’s proposals, quotations, confirmation or other forms, are hereby objected to by Buyer. Buyer’s failure to object to provisions contained in any communication from Seller that differ from these Terms shall not be deemed an acceptance of such provisions or a waiver of these Terms. If, and to the extent that, these Terms conflict with any terms affixed to any confirmation, purchase or procurement document issued by Seller, these Terms shall prevail irrespective method of acceptance. Seller shall be deemed to accept these Terms by a written acknowledgement, by implication (beginning of performance), or shipment of goods ordered hereunder. Any changes in these Terms must specifically be agreed to in writing signed by Buyer’s authorized representative before becoming binding on Buyer. This contract shall not be assignable or transferable by Seller without the prior written consent of the Buyer. THE TERMS OF THIS AGREEMENT ARE EXCLUSIVE.
2. QUALITY AND REMEDIES
Except as otherwise agreed in writing, Buyer shall have the right to inspect and test the goods at destination before acceptance or payment. Seller hereby warrants to Buyer and any purchaser from Buyer that the goods will: (a) be new and free from any defects in workmanship, material, and design, (b) complies with the drawings, samples or other specifications, if any, in all material respects, (c) be fit for their intended purpose and operate as intended, and (d) be free and clear of all liens, security interests, or other encumbrances. This warranty shall cover latent and patent defects notwithstanding inspection, acceptance or payment by Buyer. Seller shall pay the costs of inspecting and testing rejected goods. Buyer may, without prejudice to any other available remedy, require Seller to repair or replace at its expense, defective goods or parts thereof. If Seller fails to timely deliver replacement goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this purchase order (“Order”) for cause. Seller shall be liable for all loss and damages caused by its breach of any covenant or warranty under this Order, including but not limited to loss of reasonable profit from resale by Buyer (which resale Seller acknowledges is expressly intended by Buyer), loss due to forfeiture of bonds and/or securities, expenses incurred including reasonable attorneys’ fees and costs, and damages, including loss of profits or other special or consequential damages, caused by Buyer’s liability to its vendees. These warranties are cumulative and in addition to any other warranty provided by law or equity. The rights and remedies under this Order are cumulative and in addition to any other rights and remedies available at law or in equity or otherwise.
3. SHIPMENT; INSTALLMENT CONTRACTS
Where definite shipping instructions are given by Buyer the instructions must be adhered to by Seller. Any expenses incurred by Buyer through Seller’s failure to comply with this condition will be borne by Seller and charged back to the Seller’s account. The goods shall be delivered to the delivery point and on the date(s) stipulated on the face hereof, it being acknowledged that time is of the essence. In case of shipment in installments, Buyer may reject any non-conforming installment and in such case treat Seller as in breach as to remaining installments notwithstanding whether the non-conformity substantially impairs the value of the non-conforming installments, can be cured, and/or substantially impairs the value of the whole contract. If delivery cannot be effected within the time stated in this Order, Buyer shall have the right, in addition to any other remedies under applicable law, to refuse and cancel without cost to it and charge Seller with any loss or damage incurred as a result of Seller’s failure to make delivery within the time specified. Shipments must equal exact amounts ordered unless otherwise agreed in writing by Buyer. Partial shipment shall not be accepted unless otherwise specially agreed in writing by Buyer. Buyer assumes no obligation with respect to goods shipped in excess of quantities specified herein. Material shipped in excess of the quantity ordered may be returned at Seller’s expense.
4. PRICE; TAXES
The price of the goods is the price stated on the face of this Order and includes storage, handling, packaging, freight, insurance, transportation, and all other expenses, costs and charges of Seller, unless Buyer agrees otherwise in writing in this Order. Payment will be made against correct invoices and documentation on the payment terms specified in this Order. The total price includes all freight, duties and taxes, except for any value added tax (VAT) imposed by a non-USA jurisdiction, which must be shown separately on Seller’s invoice for each shipment, and Buyer shall not be liable for any business activity taxes or taxes on or measured by net income. Seller warrants that the price of goods is not higher than Seller’s price to others for the same or similar goods in similar quantities.
Seller shall invoice Buyer for this Order within thirty (30) days of delivery. Buyer shall pay all properly invoiced amounts due to Seller within the time frame agreed upon by the parties, except for any amounts disputed by Buyer. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Order notwithstanding such dispute. Without prejudice to any other right or remedy, Buyer reserves the right to set off any amount owing to it by Seller against any amount payable by Buyer to Seller. Payment of an invoice is not evidence or admission that the goods meet the requirements of this Order. Buyer shall not be held responsible for failure or delay in making any remittance nor in establishing any letter of credit for reasons beyond Buyer’s control, including without any limitation restriction on import or payment imposed by any governmental or quasi-governmental body, agency, or authority.
6. PACKING & MARKING
All goods shipped to Buyer hereunder, including without limitation hazardous, dangerous, explosive, inflammable, or toxic goods, must be properly packed and marked and Seller assumes all liability direct or indirect because of failure to do so.
Seller warrants to Buyer and any purchaser from Buyer that the goods and the sale or use of them will not infringe any United States or foreign patent rights, trademarks, copyrights, trade secrets, or similar rights and agrees to defend and hold Buyer harmless from all liabilities, judgments, penalties, damages, losses, costs and expenses, including actual attorneys’ fees, incurred by Buyer as a result of any and all claims, actions, orders, awards, or proceedings alleging or relating to such infringement. If the goods are covered by any such rights owned or controlled by Seller and suit is instituted to declare such rights or claims thereunder invalid or so limited in scope as to impair the goods commercial value, this Order may be cancelled forthwith by Buyer without obligation or liability to Seller.
8. MODIFICATION OF CONTRACT
Buyer has the right at any time to change the quantity, scope, specifications, time of performance, and other matters provided in this Order, or to cancel this Order, with respect to goods not theretofore shipped by Seller and as to which Seller has not otherwise substantially changed its position by commencement of manufacture or otherwise. If any such change or termination increases or decreases Seller’s costs or the time required for performance of Seller’s obligations, the purchase price of the goods or the delivery schedule, as the case may be, shall be adjusted accordingly on a fair and equitable basis by negotiation, provided that proposals by Seller for such negotiation are made in writing within the thirty (30) days of Buyer’s change of order or termination. No price adjustment shall be made in favor of Seller with respect to goods which are inventory on hand, and with regard to other goods, Buyer shall not, under any circumstances, be obliged by such adjustment to pay more than the Seller’s actual cost plus margin applicable to the goods originally ordered. In connection with any claim by Seller for a price adjustment under this paragraph, Seller shall submit cost data in such form and details as may reasonably be required by Buyer.
9. FORCE MAJEURE
Buyer shall not be liable for its complete or partial failure to perform or delay in performance hereunder due to acts of God, nature, fires, floods, war, riots or other hostilities, civil disorder, commotion or unrest, epidemic, sabotage, accidents, strikes, labor disputes or shortages, contract breach or repudiation by purchasers from Buyer, governmental law, ordinances, rules, regulations, directives and actions or omissions whether valid or invalid, inability or difficulty in obtaining transportation, mishap to or delay of any carrier, forwarder, loader or similar person or concern, boycotts, or any other cause beyond the reasonable control of the Buyer, and in any such event Buyer may by notice cancel this contract in its entirety or as to the goods affected in the event of such delays. Seller is bound to make delayed shipment of delivery if so instructed within a reasonable time after removal of the cause of such delay.
10. COMPLIANCE WITH LAWS
Seller, and any goods supplied by Seller, shall comply with all applicable laws, including rules, regulations, orders, conventions, ordinances or standards, that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the goods, including laws relating to environmental matters, hiring, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health or safety, and motor vehicle safety. This Order incorporates by reference all clauses required by these laws. All materials used by Seller in the goods or in their manufacture shall satisfy current governmental and safety constraints on restricted, toxic and hazardous materials as well as environmental, electrical and electromagnetic considerations that apply to the country of manufacture, sale or destination. Before and at the time the goods are shipped, Seller will give Buyer sufficient warning in writing (including appropriate labels on all goods, containers and packing, together with disposal and recycling instructions, material safety data sheets and certificates of analysis) of any hazardous material that is an ingredient or part of the goods, together with any special handling instructions that are needed to advise carriers, Buyer and their employees how to take measures to prevent bodily injury or property damage while handling, transporting, processing, using, or disposing of the goods, containers, and packing.
11. BREACH; BANKRUPTCY
This agreement shall continue in effect as hereinabove provided, unless sooner terminated and canceled as follows:
(a) Either party hereto shall have the right to terminate and cancel this agreement if the other party shall breach any of the terms, conditions or provisions of this order, and shall fail to remedy such breach within five days after written notice thereof.
(b) Buyer shall have the right to immediately terminate this agreement if Seller shall: (1) become insolvent, commence or file any voluntary or involuntary proceeding or petition in bankruptcy in any court; (2) shall make any assignment for the benefit of creditors; (3) shall enter into any composition with its creditors; (4) if a receiver is appointed for any of the Seller’s property; or (5) if at any time or for any reason, Buyer, it its sole judgment and discretion, deems itself insecure and Seller to be unable to fulfill its obligations hereunder.
(c) Notwithstanding any of the foregoing, accrued obligations of the parties under this agreement shall survive the termination and cancellation hereof.
Buyer’s actual costs and attorneys’ fees incurred by reason of Seller’s breach shall be reimbursed by Seller.
To the fullest extent permitted by law, Seller will defend, indemnify and hold harmless Buyer, Buyer’s successors, assigns and customers, dealers and users of the products sold by Buyer against any and all claims, damages, liabilities, or expenses (including attorneys’ fees and other professional fees, settlements and judgments) arising out of or resulting in any way from any defective goods, or from any negligent or wrongful act or omission of Seller, or Seller’s agents, employees or subcontractors, or any breach or failure by Seller to comply with any of Seller’s representations or other terms and conditions of this Order (including any part of these Terms). Seller’s obligation to defend and indemnify under this Section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise except for claims that arise as a result of the sole negligence of Buyer.
12. CONFIDENTIAL INFORMATION
All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, pricing, discounts or rebates, disclosed by Buyer 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 this Order is confidential, solely for the use of performing this Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer 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) rightfully and legally known to the Seller at the time of disclosure; or (c) rightfully and legally obtained by the Seller on a non-confidential basis from a third party.
Seller shall, at its own expense, maintain, and carry insurance in full force and effect with financially sound and reputable insurers to fulfill its obligations under this contract or in additional amounts and coverages as may be reasonably requested by Buyer or (to the extent directed by Buyer) Buyer’s Customer(s), in each case naming Buyer and its affiliates and Customer(s) (as applicable) as loss payees and as “additional insureds.” Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance evidencing the coverage referenced in this Order.
14. CUSTOMER TERMS
As directed by Buyer in writing, Seller agrees to comply with the applicable terms and conditions of any agreements (“Customer Purchase Orders”) received by Buyer from a third party (“Customer”), or directly or indirectly applicable to Buyer, pursuant to which or in respect to which Buyer agrees to supply to Customer, or incorporate into goods supplied to Customer, goods purchased by Buyer from Seller. The term Customer shall also include the final equipment manufacturer of goods or services into which the goods are or will be incorporated. Buyer may in its discretion supply Seller with information regarding the Customer Purchase Orders, but Seller shall be responsible for ascertaining any terms and conditions contained in Customer Purchase Orders that may affect Seller’s obligations under an Order. Seller will do everything within its control to enable Buyer to meet the terms and conditions of the Customer Purchase Orders. If this Section conflicts with any other paragraph or Section in an Order, Buyer by written notice to Seller has the right to have the provisions of this Section prevail.
a. This contract constitutes the entire agreement between the parties and supersedes all prior agreements and understanding between them relating to the subject matter hereunder and no modifications of this contract shall be binding on either party unless it is in writing and signed by both parties.
b. Waiver by, or failure of, Seller to exercise in any respect any right provided for herein shall not be later deemed a waiver nor prevent Seller from stricly enforcing any right hereunder at a later time. No waiver by Seller of any provision of this contract shall be effective unless made in writing. No waiver by Seller of any breach of any provision of this contract shall constitute a waiver of any subsequent breach of the same or of any other provision of this contract.
c. Buyer and Seller agree that the laws of the state of Buyer’s office issuing the purchase order as shown on the purchase order and/or other Buyer-issued document, without reference to its conflict of laws principles, govern this contract and all of the transactions contemplated by it, as well as all matters arising out of or relating to it, including without limitation claims as to its validity, interpretation, construction, perfomrnace, and all claims sounding in tort. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.
d. The arbitration provisions of this Section 15 will be governed by the United States Federal Arbitration Act. At Buyer’s option, exercised by written notice any time before or within 30 days following the service of process in a legal action, any dispute regarding the Products, the Order, the validity of the Order or any of these Terms, or any other matter between the parties (other than requests for injunctive relief) will be resolved exclusively by binding arbitration, conducted in the English language, as follows: (i) the arbitration will be conducted under the commercial arbitration rules of the American Arbitration Association (AAA) and under Rules 26 through 37 of the U.S. Federal Rules of Civil Procedure, in a location agreed by the parties; (ii) if the parties cannot agree on a location within thirty (30) days of either party’s request for arbitration, the arbitration will be conducted in the county and state of Buyer’s office issuing the purchase order, and (iii) the arbitrator will be selected from an AAA list using the AAA-recommended selection method. Each party will bear equally the costs and expenses of AAA and the arbitrator, and each party will bear its own costs and expenses — provided, however, (1) that the failure by one party to pay its share of the arbitration fees constitutes a waiver of such party’s claim or defense in the arbitration, and (2) that the arbitrator may award attorneys’ fees and costs to the substantially prevailing party. In no event will any party be awarded punitive or exemplary damages. All arbitration proceedings shall be confidential, except to the extent that disclosure is necessary to enforce an arbitration award in a court of competent jurisdiction or is required by Buyer’s Customer(s). The arbitration award shall be final and binding upon the parties, and enforceable in any court of competent jurisdiction.
e. Section headings are for convenience only and shall not be considered in the interpretation of this contract.
f. If any term of this contract is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
Last updated July 2017