- Standard Terms and Conditions
Any offer made by Ushio America, Inc. (“Seller”) to sell goods is subject to these terms and conditions, and, unless otherwise expressly agreed by Seller in writing, any different or additional terms and conditions proposed by the purchaser are hereby objected to and rejected and shall be of no effect.
- Prices, Taxes and Minimum Order
2.1 Unless otherwise specified by Seller, prices are in US currency. Prices do not include, and the purchaser shall pay (or reimburse Seller for), any and all excise, sales, use, personal property, inventory or similar taxes, charges or levies imposed on or in connection with the sale or use of goods sold by Seller to the purchaser or held by Seller for the purchaser pending shipment.
2.2 Price quotations are subject to change without notice. After acceptance, price terms are subject to increase to cover cost increases, including increases in any applicable duties or tariffs.
2.3 Orders are subject to stock availability.
- Payment Terms
3.1 Payment terms are as set forth on the front side of this quotation.
3.2 Interest at a rate equal to the lower of 1.5% per month or the maximum rate permitted by law shall accrue on the outstanding balance of all payments not made when due, and any such interest shall be payable on demand.
- Delivery and Risk of Loss
4.1 Unless otherwise specified on the quotation, (a) shipments of the goods will be made EXW warehouse at such location as Seller may designate, Incoterms® 2010, and (b) all risk of loss of or damage to the goods will pass to the purchaser when the goods are delivered by Seller to the carrier for shipment. Seller will not be liable in any respect for any loss or damage caused by any failure or delay in making delivery.
4.2 Terms of delivery are as set forth on the front side of this quotation. Notwithstanding delivery and the passing of risk in the goods, or any other provision of these conditions, the title to the Products will not pass to the purchaser until Seller has received in cash or cleared funds representing payment in full of the price of the goods and all other goods agreed to be sold by Seller to the purchaser for which payment is then due.
4.3 Seller will not ship goods without the signature of an authorized representative of the purchaser on the specifications for such goods.
- Changes, Cancellation and Returns
5.1 Orders accepted by Seller are not subject to change or cancellation by the purchaser unless Seller consents in writing and the purchaser pays to Seller 100% of the purchase price, which covers Seller’s losses (including lost profit, if any) and actual costs incurred in connection with such change or cancellation.
5.2 Claims relating to nonconforming or defective goods shall be handled as agreed between Seller and the purchaser.
5.3 Goods may not be returned to Seller unless Seller consents in writing and assigns a return authorization number. Any unauthorized returns or shipping containers received from the purchaser that do not bear a return
authorization number will be returned to the purchaser at the purchaser’s expense. Return shipments must be prepaid, insured, and shipped at the purchaser’s expense.
- Force Majeure
Seller shall have no liability to the purchaser for any delay or failure in carrying out its obligations to the purchaser for reasons beyond Seller’s control including, without limitation, acts of God, war, terrorism, natural disasters, labor disputes, changes in or compliance with laws, regulations or governmental policies and shortages of supplies and services. Seller may extend delivery until any such cause of delay has been removed or, at its option, cancel the undelivered portion of any order so affected without liability to the purchaser except for the return of any payment made by the purchaser to Seller with respect to any undelivered portion of the order so canceled.
- Warranty and Limitation of Liability
7.1 Seller warrants to the purchaser that goods sold by Seller to the purchaser will be free from manufacturing defects in materials and workmanship.
7.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE MANUFACTURING SPECIFICATIONS, SELLER EXCLUDES AND EXPRESSLY DISCLAIMS ALL WARRANTIES AND TERMS, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE.
7.3 The warranty set forth in Section 7.1 is subject to the specific terms of the manufacturing specifications, a copy of which will be provided by Seller to the purchaser.
7.4 IN NO EVENT SHALL SELLER BE LIABLE TO THE PURCHASER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Infringement
8.1 Subject to Section 8.2, Seller shall indemnify and hold the purchaser harmless from any claims that goods sold by Seller to the purchaser infringe on the patent or other proprietary rights of third parties, except that Seller shall have no liability under this provision unless the purchaser gives to Seller prompt written notice of any such claim, full authority to settle, compromise or defend any such claim, and full cooperation in connection therewith. In the event the purchaser notifies Seller of any such infringement claims, Seller shall at its option (a) defend or settle such claims, (b) procure for the purchaser the right to use the goods, (c) substitute non-infringing goods, or (d) accept the return of the product and refund the purchase price less appropriate deductions in the event the goods are not returned in the condition in which sold.
8.2 The purchaser shall indemnify and hold Seller harmless from any claims that goods sold by Seller to the purchaser in accordance with specifications furnished by purchaser or the use of such goods infringe on the patent or other proprietary rights of third parties.
- Designs and Trade Secrets
Any drawings, data, designs, specifications, or other technical information supplied by Seller to the purchaser in connection with the sale of any goods shall remain Seller’s property and shall be held in confidence by the purchaser, and the same shall not be reproduced or disclosed to others without Seller’s prior written consent.
- Export Controls
The purchaser will comply with all applicable export control laws as in effect from time to time.
- Miscellaneous
11.1 The purchaser’s rights, duties and claims under these terms and conditions may not be assigned, transferred or delegated without prior written consent of Seller in each instance.
11.2 These terms and conditions and any contract of sale between Seller and the purchaser shall be governed by the laws of the State of California, USA, without reference to conflicts of law principles.
11.3 The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these terms and conditions or to any contract of sale between Seller and the purchaser.
11.4 If any provision contained in these terms and conditions or any contract of sale between Seller and the purchaser or any portion of any such provision is held to be unenforceable or invalid, the remaining provisions and portions shall nevertheless be carried into effect.
11.5 The headings contained in these items and conditions are for convenience only and do not in any way interpret, limit or amplify the scope, extent or intent of any of the provisions.