GENERAL TERMS AND CONDITIONS OF SALE
We have received your order for the goods described above. Your order is accepted conditionally upon your acceptance of the terms and conditions of sale appearing above and on the reverse side of this form. You (referred to on the reverse as “Buyer”) shall be deemed to have accepted such terms and conditions if you fail to specifically reject in writing any such terms and conditions within five (5) days of the date of this acknowledgment. TDK-Lambda Americas, Inc. (“Seller”) objects to and rejects all terms and conditions of sale in your order additional to or different from the terms and conditions of sale appearing above and on the reverse side of this form. This acknowledgment constitutes the complete and exclusive statement of the terms and conditions governing the contract to sell you the goods described above (the “Agreement”).
1.BUYER’S ASSENT TO TERMS AND CONDITIONS (a) Seller hereby objects to and rejects any and all different or additional terms or conditions contained in any order submitted to Seller by or on behalf of Buyer unless specifically agreed to in writing signed by an officer of Seller. Under no other circumstances are any such different or additional terms to be considered a part of this Agreement. (b) No representative or agent of Seller has any authority to make any different or additional representations or warranties on behalf of Seller. (c) Until Seller issues a new quotation, the terms and conditions hereof shall govern all sales of goods of the type described on the face hereof by Seller to Buyer regardless of whether the price of such goods changes or Buyer orders such goods in excess of the quantity specified in this Agreement.
2.PRICES/PAYMENT TERMS If no price is set forth on the face hereof, prices for the goods described herein (the “Goods”) shall be as in effect at the time of shipment. Orders amounting to less than $25.00 net will be invoiced at $25.00, except for the FCA/FCB product with respect to which orders for less than $75.00 net will be invoiced at $75.00. Prices are subject to change without notice. Verbal quotations expire, unless accepted, the same day they are made. Written quotations automatically expire thirty (30) calendar days from the date issued and can be terminated by notice at any time within that period prior to acceptance. Prices shown in Seller’s publications are not a definite quotation or offer to sell. Such publications are maintained as a source of general information and prices shown therein are subject to specific confirmation. Terms of payment are Net thirty (30) days. Seller may invoice for pro rata payments as work is completed. If shipment is delayed by Buyer, Seller may invoice and Buyer shall pay for the percentage of work completed. If Buyer defaults on any payment when due, the full Agreement price shall immediately become due and payable on demand, or Seller, at its option and without prejudice to other lawful remedies, may defer delivery or cancel the order. Seller reserves the right to require full or partial payment in advance if, in its opinion, the financial condition of Buyer at any time does not justify continuance of production, or shipment, on the terms of payment specified. Goods held for purchase at Buyer’s request shall be at the risk and expense of Buyer. Payment shall become due from the date on which Seller is prepared to make shipment.
Interest shall be paid on demand on past due amounts at the rate of two percent (2%) per month or the highest lawful rate, whichever is less.
3.DELIVERY AND RISK OF LOSS (a) All sales are F.O.B. Seller’s plant in Neptune, New Jersey (“Seller’s Plant”). The price for the Goods does not include charges for freight, packaging, insurance, or federal, state or municipal taxes, all of which are the responsibility of Buyer. (b) All shipping dates are estimates and do not guarantee a particular date of shipment. SELLER SHALL NOT BE LIABLE FOR ANY LOSSES, OR DAMAGES (WHETHER INCIDENTAL, CONSEQUENTIAL OR OTHERWISE) RESULTING FROM ANY DELAYS IN SHIPPING OR DAMAGE OCCURRING DURING SHIPPING. (c) Seller may ship the Goods to Buyer’s address as shown on the face hereof (the “Shipping Address”) by any commercially reasonable means and may select the carrier and route. Delivery of the Goods by Seller to a carrier at Seller’s Plant shall constitute tender of delivery to Buyer for all purposes. All risk of loss with respect too the Goods shall pass to Buyer upon tender of delivery. Seller does not insure Goods against loss or damage in transit.
4.RESCHEDULING DELIVERY/CANCELLATION (a) A one-time change may be made to scheduled deliveries that are beyond the then current lead-time up to a maximum of 25% of the delivery value thereof, determined at the time of rescheduling and not including deliveries scheduled within the current lead-time. Delivery dates cannot be extended by more than six (6) months. Deliveries within the then current lead-time cannot be rescheduled. (b) Cancellations are subject to the following Cancellation Charges and Pricing Differential: Orders may be canceled at any time subject to the following cancellation charges:
|Weeks Prior to Ship Date||Cancellation Charge as % of Final Price|
|Pricing Differential||The decrease in volume ensuing from the cancellation, will result in an adjustment to the original price of the order. The pricing differential will be the difference between the original order price and the list price less any quantity discounts achieved after the cancellation.|
5.INSPECTION AND ACCEPTANCE/RETURNED GOODS Buyer as its expense shall inspect the Goods immediately upon receipt at the Shipping Address and, within thirty (30) days of such receipt, shall give Seller a full and final written statement of all purported nonconformance’s and defects. If Buyer fails to give such written notice within such thirty (30) day period, Buyer shall be deemed to have irrevocably accepted the Goods. Goods may not be returned, and will not be accepted for return by Seller, without the prior written approval of Seller. Returned Goods must be shipped by Buyer freight prepaid, properly packaged and will be subject to inspection at Seller’s Plant and costs incurred by Seller to return the Goods to as new condition shall be for the account of Buyer. Returned Goods accepted for credit (unless returned because of the fault of Seller) shall be subject to a minimum service charge of the greater of 15% of the net sales price of $25.00. No credit will be given for freight charges. Goods built to Buyer’s specification or sold on a non-returnable basis cannot be returned for credit under any conditions.
6.FORCE MAJEURE/ADJUSTMENTS If performance by Seller is delayed or made impracticable or burdensome by any cause beyond Seller’s control, including, without limitation, acts of God, fire, flood, explosion, vandalism, sabotage, riot, insurrection, severe weather, curtailment or termination of Seller’s regular sources of supplies, inability to obtain or a delay in obtaining licenses, permits, materials or equipment, acts or omissions of Buyer, its agents or representatives, shipping delays, strikes or other disputes involving Seller or its subcontractors or suppliers or any existing or future laws or acts of any government or regulatory body, then (i) Seller shall be excused from performance to the extent that and for so long as such performance is delayed or made impracticable or burdensome by such cause, (ii) Seller may equitably adjust the price of the Goods, (iii) Seller may furnish suitable substitutes for the Goods.
7.LIMITED WARRANTY Seller warrants the Goods shall conform with written specifications published by Seller (subject to the limitations in Paragraph 14) and to be free from defects in materials and workmanship (except for tubes, fuses, lamps and batteries) for a period of one (1) year after tender of delivery (the “Warranty Period” ). THIS LIMITED WARRANTY (a) IS IN LIEU OF, AND SELLER DISCLAIMS AND EXCLUDES, ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF CONFORMITY TO MODELS OR SAMPLES; (b) does not apply to any Goods which have been (i) repaired, altered or improperly installed; (ii) subjected to improper use or storage; (iii) used or incorporated with other materials or equipment, after Buyer or anyone using the Goods has, or reasonably should have, knowledge of any defect or nonconformance of the Goods; or (iv) manufactured, fabricated or assembled by anyone other than Seller; (c) shall not be effective unless Buyer notifies Seller in writing of any purported defect or nonconformance within thirty (30) days after Buyer discovers or should have reasonably discovered such purported defect or nonconformance; and (d) shall only extend to Buyer and not to any subsequent buyers or users of the Goods. Buyer shall provide Seller access to the Goods as to which Buyer claims a purported defect or nonconformance. Upon request by Seller, Buyer shall, at its own risk and expense, promptly return the Goods in question to Seller’s Plant.
8.BUYER’S REMEDIES Seller’s liability for any breach of the limited warranty set forth above is limited to either (i) repair or replacement of any nonconforming components of the Goods, or (ii) upon return of the nonconforming Goods, return of the amount paid therefore, whichever Seller shall elect. Seller’s liability shall in no event be greater than the price of the Goods and shall not include any shipping or other costs incurred in connection with any such repair, replacement, reinstallation or reshipment. Any nonconforming Goods returned to Seller must be accompanied by proof of purchase and the transportation of the Goods must be prepaid. Any Goods that are repaired or replaced by Seller shall be re-delivered to Buyer F.O.B. Seller’s Plant and shall be warranted, subject to the terms hereof, until the expiration of the original Warranty Period. Notwithstanding the foregoing, Seller shall have no warranty obligations unless and until Buyer performs all its obligations hereunder, including payment in full of the purchase price. THE REMEDY SET FORTH IN THIS PARAGRAPH SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER AND BUYER WAIVES ALL OTHER REMEDIES AGAINST SELLER.
9.LIMITATION OF LIABILITY IN GENERAL Except as provided herein, in no event whatsoever shall Seller or any of its shareholders, directors, officers, affiliates, predecessors, successors and assigns, be liable to Buyer or any of its shareholders, directors, officers, affiliates, predecessors, successors and assigns, for any loss or damages of any kind, whether direct, incidental, consequential, exemplary, special or otherwise relating in any way to this Agreement or acts or omissions in connection herewith (including, without limitation, the performance or non-performance of this Agreement and the use of or the loss of use of any of the Goods or other property), regardless of whether Seller and/or others may be wholly, concurrently, partially, jointly or solely negligent or otherwise at fault.
10.WAIVER No failure of Seller to require strict performance by Buyer of this Agreement shall waive, affect or diminish any right of Seller to demand strict performance of this Agreement thereafter. The rights and remedies herein reserved to Seller shall be cumulative and in addition to any other rights and remedies provided by law.
11.GOVERNING LAW/ CONSENT TO JURISDICTION This Agreement shall be deemed to have been made under, and shall be construed and interpreted in accordance with, the substantive laws of the State of New Jersey, without regard to any choice of law rules or principles. Buyer hereby submits to the jurisdiction of the state and federal courts for the State of New Jersey and said courts shall have exclusive jurisdiction and venue to adjudicate the rights and obligations of the parties relating in any manner to this Agreement.
12.SEVERABILITY If any provision of this Agreement is held by any court to be invalid or unenforceable, such provision shall be deemed to be modified or deleted, but only to the extent necessary to enable that and the remaining provisions of this Agreement to be valid and enforceable.
13. NO ASSIGNMENT Buyer may not assign any rights or obligations under this Agreement without prior written consent of Seller.
14. CATALOG INFORMATION Seller reserves the right to discontinue products, or to modify the design or specifications of any product without notice, without incurring any obligation including without limitation making any modification to equipment previously sold. Published weights are carefully estimated but are not guaranteed. Dimensions shown in sales literature are approximate for construction purposes. Certified dimension drawings can be obtained upon request from the factory.