Terms and Conditions of Sale

1. ACCEPTANCE. These Terms and Conditions of Sale apply to all purchase orders (“Orders”) that are accepted by Nachi America Inc. (“Nachi”). These Terms and Conditions of Sale form the basis of the agreement between Nachi and Buyer. Any terms or conditions stated by Buyer in an Order, proposed supply agreement or in any other communication prior or subsequent hereto shall not be binding on Nachi if in conflict with or in addition to any of the provisions of these Terms and Conditions of Sale, nor shall any such communication by Buyer serve as an objection, explicit or otherwise, to these Terms and Conditions of Sale. If Buyer’s Order or offer to purchase is expressly conditional upon Nachi’s adherence to Buyer’s terms and conditions, then these Terms and Conditions of Sale shall operate as a counteroffer, expressly conditioned upon the Buyer’s acceptance of these Terms and Conditions of Sale. Whether these Terms and Conditions of Sale operate as an acceptance or a counteroffer, the acceptance by Buyer of any goods provided hereunder shall constitute acceptance by Buyer of these Terms and Conditions of Sale and relinquishment and waiver of any right to limit acceptance or object to these Terms and Conditions of Sale under the Uniform Commercial Code.
2. PRICE. Unless otherwise agreed to in writing, all prices are in U.S. dollars. Payment terms shall be net thirty (30) days from the date of invoice. Amounts unpaid after the payment term shall accrue interest compounded monthly at the annual rate of 18% or the maximum legal rate, if less. Price quotations shall be subject to change by Nachi with thirty (30) days advance verbal or written notice to Buyer and invoicing will be based on prices in effect at time of shipment which may reflect movement in foreign currency, changes in the prices of raw materials or other factors that may have occurred between the order date and shipment date. All Orders placed based on price quotations on special items not listed in Nachi’s standard catalogue as “Standard Products” will be subject to Nachi’s written acceptance and shall include cancellation charges of 110% of the actual cost of labor and material expended by Nachi at the time of cancellation. Nachi’s price does not include applicable sales, use, excise, GST, VAT or similar taxes and the amount of any such tax that Nachi may be required to pay or collect will be added to each invoice unless the Buyer has furnished Nachi with an appropriate exemption certification which is acceptable to the taxing authorities.
3. SHIPMENT AND RISK OF LOSS. Unless otherwise agreed to in writing by Nachi, all quotations are EXW (INCOTERMS 2020) Nachi’s warehouse, and do not include transportation cost to Buyer’s location. Shipment dates provided by Nachi are approximate and are based on prompt receipt of all necessary information regarding the Order, provided however, Nachi is not liable for any expense, loss or damage whatsoever suffered by Buyer as a result of Nachi’s failure to deliver goods by the specified date.
4. SETOFF. Neither Buyer nor any assignee of Buyer shall have a right to claim compensation or to set off against any amounts which become payable to Nachi under this agreement or otherwise.
5. CHANGES OR CANCELLATION OF ORDERS. Any Order placed with and accepted by Nachi may be modified or canceled by Buyer only upon written approval of Nachi and upon terms that indemnify Nachi against loss. If Nachi does authorize cancellation or modification, a 10% restocking fee shall apply. Nachi may cancel all or any part of an Order and discontinue its performance thereunder without liability to Buyer in the event Buyer materially breaches these Terms and Conditions of Sale, becomes insolvent, files or is the subject of a bankruptcy, or is the subject of a receivership, liquidation, dissolution or similar proceeding.
6. WARRANTIES AND DISCLAIMER. All goods are warranted to be free from defects in material and workmanship for a period of one (1) year from the date of shipment to Buyer and to meet Nachi’s specifications for such goods at the time of delivery. Nachi ASSUMES NO RESPONSIBILITY FOR BUYER'S DESIGNS, DRAWINGS, PLANS, OR SPECIFICATIONS. THE ABOVE STATED WARRANTIES ARE THE SOLE WARRANTIES AND ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED OR IMPOSED BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MECHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. Nachi’s obligation for warranty claims shall be limited to the repair or replacement of the nonconforming goods at the original delivery point or, at Seller’s option, a credit to Buyer for the purchase price of the nonconforming goods which shall be Buyer’s sole and exclusive remedy for any and all warranties, including liability based in contract, tort or strict liability.
7. INSPECTION AND ACCEPTANCE. Buyer shall have 10 business days after delivery (the “Rejection Period”), to inspect the goods and either accept or reject them. Failure to inspect the goods within the Rejection Period shall constitute a waiver of Buyer’s right of inspection. Failure to inspect and/or reject the goods within the Rejection Period shall constitute an unqualified and irrevocable acceptance of the goods by Buyer and a waiver of any and all claims by Buyer for nonconforming goods or delivery and Buyer shall be bound to pay for the goods in accordance with these Terms and Conditions of Sale. To reject any nonconforming goods, Buyer must immediately (and in any event, within the Rejection Period) notify Nachi in writing that Buyer considers the goods nonconforming. Such notification shall identify each and every alleged nonconformity and describe that portion of the shipment being rejected. Buyer shall give Nachi a full and reasonable opportunity to investigate all claims and shall return any allegedly defective goods upon request. All claims or requests for return must conform to Nachi’s Return Goods Authorization (RGA) Procedure. Nachi will not be liable for any consequential, incidental, exemplary or other damages sustained by Buyer or an end user, including but not limited to, loss of productivity, loss of profits or revenues, damages to machinery or mechanical devices, cost of capital or the cost of replacement of goods from a third party caused by nonconforming goods. Notwithstanding anything to the contrary contained herein, any and all warranties set forth herein shall immediately cease and terminate in the event that goods or any parts or appurtenances thereto are altered or modified by Buyer or an end user without the prior written consent of Nachi.
8. LIMITATION OF LIABILITY. NACHI SHALL NOT BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF INCOME, PROFITS OR PRODUCTION; ANY REPROCUREMENT COSTS; INCREASES IN THE COST OF OPERATIONS; OR DAMAGES TO MATERIAL.
9. BUYER’S SPECIFICIATIONS. Unless otherwise agreed upon in writing by Nachi, Buyer is solely responsible for the goods specifications and, assumes all risk of application, product selection, sizing, fitment, compliance with Nachi’s recommendations as listed in the Information section of Nachi’s catalogue and/or website and accepted standard industry practice. Buyer shall indemnify and save harmless Nachi against any claims or liability for violation of any intellectual property rights, including patent, trade secret or trademark rights, owned or controlled by third parties in the United States or in any other country on account of preparation or manufacture or goods pursuant to such specifications. The sale of goods covered by these Terms and Conditions of Sale shall not expressly or impliedly grant to Buyer any right or license of any kind under any patent, patent application, or other industrial property right owned or controlled by Nachi or its affiliates, but the foregoing shall not be understood to limit in any way the right of Buyer to use and sell such goods, in the events such goods, as sold hereunder, are covered by any such patent. There is no warranty that the use of any goods may not infringe patent rights of others. Any intellectual property, whether or not such intellectual property is protectable, developed by Nachi in performance of its obligations under these Terms and Conditions of Sale will remain the sole and exclusive property of Nachi and Buyer shall have no rights in such intellectual property.
10. CREDITWORTHINESS OF BUYER; TERMINATION. By placing an Order with Nachi or by accepting goods delivered by Nachi, Buyer represents that it is not insolvent. For the purposes of these Terms and Conditions of Sale, Buyer is insolvent if (i) Buyer fails to pay its obligations in accordance with these Terms and Conditions of Sale and in the ordinary course of business or (ii) the amount of Buyer’s liabilities exceed the value of its assets in accordance with generally accepted accounting principles. Buyer shall provide verified certificates on a quarterly basis, ensuring that it is not insolvent on the basis of both definitions of insolvency described herein. In the event that Buyer becomes insolvent before delivery of the goods, Buyer shall immediately notify Nachi. A failure to so notify Nachi shall be construed as a reaffirmation by Buyer of Buyer’s solvency at the time of delivery. Nachi shall have the right to stop delivery of the goods, whether delivery is by carrier or any other means, if the Buyer becomes insolvent and to stop delivery or terminate wholly or partly every supply agreement between Nachi and Buyer if Buyer: (i) repudiates these Terms and Conditions of Sale or any other supply agreement between Nachi and Buyer, (ii) fails to make a payment due before delivery arising from these Terms and Conditions of Sale or any other supply agreement between Nachi and Buyer, (iii) fails to provide any letter of credit, bill of exchange or any other security required, (iv) rejects, returns or fails to take delivery of any goods tendered by Nachi other than in accordance with the provisions herein, (v) or if for any other reason Nachi has a right to withhold or reclaim the goods regardless of whether they are to be shipped directly to Buyer or to some third party as may be designated by Buyer. Upon termination, Nachi shall have no further obligation under these Terms and Conditions of Sale, but in no event shall termination discharge Buyer of its obligation to pay in a timely fashion or of any other obligation owing under these Terms and Conditions of Sale or any other supply agreement between Nachi and Buyer. Notwithstanding any other provision to the contrary, Nachi reserves the right to ship goods to Buyer under reservation.
11. CONFIDENTIALITY. It may become necessary for Nachi to disclose to Buyer information that Nachi considers confidential and/or proprietary. Buyer shall have a duty to protect all information that is disclosed by Nachi in any manner. Buyer shall not disclose Nachi’s information to any third party without the prior written consent of Nachi and shall limit its disclosure to its employees having a need to know such information. Buyer shall protect Nachi’s information by using the same degree of care (but not less than a commercially reasonable degree of care) used to prevent the unauthorized disclosure of Buyer’s own information of a similar nature.
12. COMPLIANCE WITH LAWS. Each party shall comply with all applicable anti-corruption laws and regulations, including the United States Foreign Corrupt Practices Act (“FCPA”), the United Kingdom Bribery Act 2010 (“UKBA”), the Japanese Unfair Competition Prevention Act (“JUCPA”) and any corresponding laws of all countries where business or services will be conducted or performed pursuant to any Order. Each party agrees that it will not, directly or indirectly through a third party, pay, offer, promise to pay, or give anything of value to any person, including an employee or official of a government, government controlled enterprise or company, or political party, for the purpose of or knowing that it will be used for obtaining any improper benefit or to improperly influence any act or decision by such person or party for obtaining, retaining, or directing business. As of the effective date of each Order, Buyer represents and warrants that it has not violated, nor has been found by any governmental authority to have violated, the FCPA, the UKBA, the JUCPA or any other applicable anti-corruption laws and regulations, and that it has no knowledge or reason to believe that any governmental authority is considering any proceeding related to any of the foregoing. If Buyer comes to have knowledge of any potential violation of the FCPA, the UKBA, the JUCPA or any other applicable anti-corruption laws and regulations, it shall immediately notify Nachi thereof in writing. Each party may terminate this agreement, without penalty, if it reasonably believes that the other party is in violation of the FCPA, the UKBA, the JUCPA or other applicable anti-corruption laws and regulations. To the extent permissible by law, Buyer shall notify Nachi of any circumstance whereby, to the best of its knowledge, any of its owners, officers, directors or employees is, has been or will become, during the term of the agreement, an employee or official of any government, government-controlled enterprise or company, or political party, or a candidate therefor.
13. FORCE MAJEURE. Notwithstanding any provision hereof to the contrary, Nachi shall not be liable for any delays, defaults, loss, damages or expenses, arising by reason of fire, flood, acts of God, labor disputes, civil unrest, inability to secure materials, pandemic, epidemic, state of war or conflict or acts of governments, whether such failure or delay is incurred, suffered, or caused by Nachi, Nachi’s affiliate, subsidiary, subcontractor or independent manufacturer or carrier, if such failure or delay is, in whole or in part beyond the reasonable control of Nachi. Nachi may either delay shipment of the goods until shipment is feasible or may cancel the sale altogether, in either case without incurring liability for breach of any agreement. Risk of expense caused by this clause will be borne by the Buyer.
14. GOVERNING LAW; CHOICE OF FORUM. In the event of any dispute hereunder, the laws of the State of Indiana shall govern the validity, performance, enforcement, and any other aspect of these Terms and Conditions of Sale notwithstanding any other jurisdiction’s choice of law rules to the contrary. The parties hereto expressly agree that any and all actions concerning any dispute arising under these Terms and Conditions of Sale shall be filed and maintained only in a state or federal court of competent jurisdiction sitting in the State of Indiana.
15. RELATIONSHIP OF PARTIES. Nachi and Buyer are independent contracting parties and nothing in these Terms and conditions of Sale will make either party the agent, partner, joint venturer or legal representative of the other for any purpose, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
16. SEVERABILITY, TERMINATION, EFFECT ON PRICE. Should any paragraph, sentence, term, or other provision of these Terms and Conditions of Sale be invalid or unenforceable under the law of the place where it is to be performed or be declared invalid or unenforceable by a court or other competent authority having jurisdiction over the matter, Nachi may elect to either: (i) terminate this agreement if not fully performed by it, or (ii) consider this agreement severable as to such provision, and such provision shall thereafter be deemed severed and inoperative. In such latter event, the remainder of this agreement shall be in full force and effect as if such severed provision were never a part of the same. In addition, if such severance shall have an adverse financial impact on Nachi, Nachi shall have further right to an appropriate upward adjustment in the price of goods sold or to be sold hereunder.
17. WAIVER OF BREACH. Failure of Nachi to enforce any of the terms, conditions and limitations of these Terms and Conditions of Sale shall not be construed as a waiver thereof or a waiver of any other terms, conditions or limitations herein or on the face hereof, and the failure of Nachi to exercise any rights arising from default of Buyer or otherwise shall not be deemed to be a waiver of such right or any other right. The terms, conditions and limitations herein and on the face hereof may be enforced and the rights of Nachi may be enforced at any time in whole or in part.
18. LIMITATIONS ON ACTIONS. Any action by or on behalf of Buyer or its successors or assigns for breach of this agreement must be commenced within one year after the cause of action has accrued.
19. ENTIRE AGREEMENT; AMENDMENTS. These Terms and Conditions of Sale, together with the terms of any quotations or Order acknowledgments issued by Nachi, constitute the entire agreement between Nachi and Buyer with respect to the matter contained herein and supersedes all prior oral and written representations and agreements. These Terms and Conditions of Sale may only be amended by an agreement in writing signed by Nachi and Buyer.

Last modified: 2022.02.01