CONTROLLING TERMS AND CONDITIONS: NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY CONTAINED IN CUSTOMER’S ORDER OR IN ANY OTHER DOCUMENT RELATING TO CUSTOMER’S ORDER, THE TERMS AND CONDITIONS OF SALE CONTAINED HEREIN SHALL BE CONTROLLING AND SHALL GOVERN THE RELATIONSHIP BETWEEN NKK SWITCHES OF AMERICA, INC. AND CUSTOMER PERTAINING TO CUSTOMER’S ORDER.
Orders shall be submitted to NKK SWITCHES OF AMERICA, INC., hereinafter called “NKK,” in writing to the attention of the order department and shall specify the products and delivery date desired by the customer. All orders shall be subject to approval and acceptance in writing by a duly authorized agent of NKK. NKK may refuse to accept any order. NKK shall acknowledge customer’s order and indicate thereon NKK’s interpretation of the order and NKK’s intention to ship as shown on the acknowledgment. It will be the customer’s responsibility to notify NKK immediately upon receipt of the acknowledgment of any discrepancies that may exist; otherwise, the terms of the acknowledgment shall be binding upon the customer.
TERMS OF PAYMENT
The terms of payment for all orders are net thirty (30) days after date of Invoice.
DELIVERY AND SHIPMENT
NKK will ship all orders FOB shipping point, no freight allowed, and by such means as NKK, in its discretion, determines to be most feasible; however, NKK will endeavor whenever practical to comply with the customerʼs request with regard to the mode of shipment and routing. Products will be shipped utilizing standard NKK packaging. Requests for special packaging may carry an extra charge and are determined by NKK at time of customer’s request. Shipping dates on the order acknowledgment are estimates only, and NKK shall not be liable for loss or damage to customer occurring as a result of delay in manufacture or delivery for any reason. NKK shall not be liable to customer for consequential or special damages due to any cause.
SHIPPING LIABILITY AND CLAIMS
NKK shall not be liable for damages to or loss of any NKK products occurring after delivery by NKK to a carrier for shipment. All claims for damages or losses in transit shall be asserted directly against the carrier by the customer. Notwithstanding any language to the contrary contained herein, it is understood and agreed that NKK shall have the right, but not the obligation, at the customer’s sole expense, to insure any shipment of NKK products against loss or damage in transit.
The legal and beneficial title to all goods specified in the purchase order shall transfer to customer at point of shipment.
All sales, use and other taxes, federal or state, payable on account of a sale, shipment or delivery shall be for the account of and paid by the customer.
NKK shall have the right, at any time without notice to the customer, to change the design, specifications or performance of the NKK products or to discontinue the manufacturing of any model or product. NKK shall have no obligation to modify NKK products previously ordered or delivered to reflect such design changes or modifications.
NKK LIMITED WARRANTY
All NKK products are warranted against defects in workmanship, material and construction FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF SHIPMENT if the products have been properly installed, used and maintained. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. IN THE EVENT ANY IMPLIED WARRANTIES MAY NOT BE ENTIRELY DISCLAIMED, SUCH IMPLIED WARRANTIES ARE LIMITED TO A ONE (1) YEAR PERIOD FROM THE DATE OF SHIPMENT. THE OBLIGATION OF NKK UNDER THIS LIMITED WARRANTY AND ALL OTHER WARRANTIES IS LIMITED TO THE FURNISHING OF NEW PARTS FREE OF CHARGE IN EXCHANGE FOR PARTS WHICH HAVE PROVEN DEFECTIVE AND DOES NOT INCLUDE ANY OTHER COSTS, SUCH AS THE COST OF REMOVAL OF THE DEFECTIVE PART, INSTALLATION, LABOR OR CONSEQUENTIAL DAMAGES OF ANY KIND, THE EXCLUSIVE REMEDY BEING TO REQUIRE NEW PARTS TO BE FURNISHED. UNDER NO CIRCUMSTANCES WILL NKK’S LIABILITY EXCEED THE CONTRACT PRICE FOR THE PRODUCTS CLAIMED TO BE DEFECTIVE. NKK ASSUMES NO RESPONSIBILITY FOR THE PROPER SELECTION AND INSTALLATION OF ITS PRODUCTS. IT IS THE CUSTOMER’S RESPONSIBILITY TO DETERMINE THE SUITABILITY OF THE NKK DEVICE FOR ITS APPLICATION. NKK MAKES NO WARRANTIES OF THE NKK PRODUCTS FOR ANY PARTICULAR APPLICATION. NKK MAKES NO WARRANTIES AND ASSUMES NO LIABILITY AS TO THE SUITABILITY OR THE SUFFICIENCY OF THE DEVICE FOR THE CUSTOMER’S APPLICATION. ALL WARRANTY CLAIMS MUST BE MADE IN WRITING TO NKK NOT LATER THAN THIRTY (30) DAYS AFTER THE EXPIRATION OF THE WARRANTY OR THEY WILL NOT BE HONORED. NKK’S LIMITED WARRANTY IS AVAILABLE ONLY TO CUSTOMER AND DOES NOT EXTEND TO ANY THIRD PARTY.
All changes to orders after acceptance by NKK must: 1) Be in writing; 2) Contain detailed instructions of the change desired; 3) Be acknowledged by NKK. Any addition to orders already accepted by NKK may be treated as new orders by NKK.
CANCELLATION OF ORDERS
Orders which have been accepted by NKK may be cancelled in whole or in part only with the written consent of NKK and the payment by the customer to NKK of a cancellation charge which will be assessed by NKK on the basis of the processing stage of the order at the time of cancellation. No order may be cancelled after shipment. Requests for extensions of shipment dates may be treated as order cancellations by NKK.
NKK generally does not accept standing, general or blanket instructions. Each transaction must be accompanied by full instructions on the order.
NKK will not be responsible for any losses or damages to customer (or any third person) whether occasioned by deviations in performance or the nonperformance of any of NKK’s obligations hereunder, or loss of or damage to goods when caused directly or indirectly by or in any manner arising from any casualty, revolution, act of God, act (including delay or failure to act) of any government authority (de jure or de facto), or (declared or undeclared) riot, act of customer, strikes or other labor difficulties, shortage of labor, supplies and transportation facilities or any other cause or causes beyond NKK’s control or the control of its supplier.
Customer hereby agrees to defend, indemnity and save NKK, its officers, directors, shareholders, agents, employees, successors and assigns harmless from and against any and all claims, actions, causes of action, liability, loss and expense, including attorneys’ fees and investigation costs arising as a result of sales by customer of NKK products or of products containing components sold by NKK, and based upon personal injury, death, property damage, lost profits and any other matters for which customer, its employees or subcontractor, or any third party are or may be to any extent liable, including, without limitation, penalties imposed by the Consumer Product Safety Act and liability under the Magnuson-Moss Warranty Act.