BINDING TERMS AND CONDITIONS OF SALE
The following are the terms and conditions of agreement ("Terms and Conditions") for the sale of products ("Products") by Nikko Electronics, ltd ("Nikkoe") to Nikko's customers ("Customers"). Agreements under these Terms and Condition of sale form the sole agreement with respect to the sale of products, and supersedes all proposals, negotiations, conversations, discussions, agreements and/or representations, whether oral or written, including any industry custom or past dealing between the parties relating to the sale of products.
1. ACCEPTANCE AND CANCELLATION OF ORDERS
Website availability and pricing is an invitation to Customer to tender an offer. Responses to quotes, and other inquiries for pricing and availability are not construed as an offer by Nikkoe. Acceptance will be in writing, by either an Order Confirmation e-mail or Electronic Data Interchange (‘EDI”) acknowledgement. Acceptance can also be though execution of Customer's order by Nikkoe. When a Customer orders a product from the Nikko’s website, the preliminary written reply to the order issued on the Nikko’s website does not mean that the order has been accepted. The written reply is only used to let the Customer know that the order has been entered into the Nikko’s computer system. Orders accepted by Nikkoe may be cancelled by Customer upon written consent of Nikkoe provided such order is not "NC/NR" or "Non-Cancelable/Non-Returnable", "Non-Standard Products", or governed by a Purchase Agreement Letter. Non-standard products are product Nikkoe has to order from a supplier specifically for the Customer. This also includes, products not normally in stock, or orders where value-added services have been incorporated into products. Non-standard products are non-cancelable and non-refundable. Nikkoe may identify Products as non-standard or "NC/NR" by various means including quotes, Products lists, attachments or exhibits. Customer may not change, cancel or reschedule Orders for Products without Nikko's consent. If after acceptance by Nikkoe of the Customer’s order, the Customer cancels the order, Nikkoe may request the Customer pay Nikkoe reasonable cancellation or reliance charges. These charges are paid to Nikkoe by the Customer. Customer requests to reschedule are subject to acceptance by Nikkoe in its sole discretion. Orders shall not be canceled or rescheduled after the order has been submitted by Nikkoe to the shipment carrier. Nikkoe RESERVES THE RIGHT TO LIMIT OR CANCEL ANY ORDER, AND HAS SOLE DISCRETION, TO ALLOCATE SALES, LIMIT QUANTITIES OF SELECTED PRODUCTS, AND LIMIT SELECTED PRODUCTS TO ITS CUSTOMERS. Nikkoe RESERVES THE RIGHT TO REJECT ANY ORDER, OR ANY PART OF AN ORDER. PRODUCT SPECIFICATIONS AND AVAILABILITY ARE SUBJECT TO CHANGE WITHOUT PRIOR NOTICE.
1a. Returns
Returns are normally accepted when completed within 14 days of the ship date for the convenience of the Customer. If Nikkoe agrees to accept a return, return freight charges must be prepaid by Customer. Nikkoe will not accept COD shipments. Some products may require return directly to the manufacturer. All return items must be in the original packaging, unused, untested, un-programmed, and in resalable condition. Contact a Customer Service Representative for a Return Materials Authorization Number and addressing instructions prior to returning product. Any ESD, programmable semiconductors, or moisture sensitive product returned that has been opened will not be eligible for credit. These statements concerning Returns, do not apply to NON-CANCELABLE/NON-RETURNABLE PRODUCTS. (See the NON-CANCELABLE/NON-RETURNABLE PRODUCTS section in these terms.)
1b. Counterfeit Product Prevention Clause
Only products originally shipped from Nikkeo or from a supplier at Nikko's direction (drop-ship) will be returned to Nikkoe. All others will be promptly quarantined and disposed of or returned to the Customer. By a Customer returning products to Nikko, the Customer certifies that the products were purchased from Nikkoe and there has been no substitution in whole or part of same product from another supplier, distributor or other such source of the product. The return should be in the original packaging (manufacturer or Nikkoe), in unused and untested condition (except defective). ESD, programmable semiconductors, or moisture sensitive products should not be opened.
2. PRICES
Nikkoe makes every effort to provide current and accurate information relating to prices, but does not guarantee the currency or accuracy of any such information. Prices are subject to change at any time prior to Nikko's completion of your order. In the event Nikkoe discovers an error in pricing, we will notify Customer of the corrected version, and Customer may choose to accept the corrected version, or cancel the order. Nikkoe is not responsible for pricing, typographical, or other errors in any communication with the Customer, and reserves the right to cancel any orders arising from such errors. Orders are billed at the prices and currency in effect at the time of shipment. Prices will be as specified by Nikkoe and will be applicable for the period specified in Nikko's quote. Unless otherwise stated on the quote, quotes are invitations to tender and are subject to change at any time without notice. If no period is specified, quoted prices will be applicable for thirty (30) days. The website reflects the latest pricing information. Prices shown on the website are subject to change without notice. Prices are subject to increase in the event of an increase in Nikko's costs or other circumstances beyond Nikko's reasonable control, including but not limited to, manufacturers’ price increases, change in exchange rate, or quoting errors. If Customer does not purchase the quantity upon which quantity prices are based, Customer will pay the non-discounted price for the quantity actually purchased and/or a cancellation or restocking fee. Prices are exclusive of taxes, impositions and other charges, including sales, use, excise, value-added and similar taxes or charges imposed by any government authority, international shipping charges, forwarding agent's and broker's fees, bank fees, consular fees, and document fees. section.
3. TERMS OF PAYMENT
All payments must be made in the currency billed on the original invoice or credit card receipt. Credit cards accepted include major credit cards, purchase cards, and major bank debit cards including MasterCard, VISA, Diners Club, Discover, and American Express. Credit Card billing information must be verified on new Customers prior to shipment of order. Payment via net thirty (30) days is available to businesses, schools, and agencies with three references or as otherwise specified by Nikkoe. Prepaid Wire Transfer/EFT/Proforma: Customers can wire the funds to our bank. After your order is placed we will e-mail a Proforma invoice which includes our bank information, the merchandise total and shipping charges. We will reserve stock for your order for 72 hours on orders awaiting funds. Orders will be canceled after 20 business days if funds have not been received. Customer is responsible for duties and taxes.
3.1 TERMS OF PAYMENT
For All Orders Customer agrees to pay the entire amount of each invoice from Nikkoe in accordance with the terms of each invoice, without offset or deduction. Orders are subject to credit approval by Nikkoe, which may in its sole discretion at any time change the terms of Customer's credit, require payment in cash, bank wire transfer/EFT or by official bank check, and/or require payment of any or all amounts due or to become due for Customer's order before shipment of any or all of the Products. If Nikkoe reasonably believes that the Customer's ability to make payments may be impaired, or if Customer fails to pay any invoice when due, Nikkoe may suspend delivery of any order, or any remaining balance, until such payment is made, or cancel any order, or any remaining balance. Customer will remain liable to pay for any Products already shipped, and all Non-Standard Products ordered by Customer. Customer agrees to submit such financial information as Nikkoe may reasonably require for determination of credit terms and/or continuation of credit terms. Checks are accepted subject to collection, and the date of collection will be deemed the date of payment. Any check received from Customer may be applied by Nikkoe against any obligation owed by Customer to Nikkoe under this or any other contract, regardless of any statement appearing on or referring to such check, without discharging Customer's liability for any additional amounts owed by Customer to Nikkoe. The acceptance by Nikkoe of such check will not constitute a waiver of Nikko's right to pursue the collection of any remaining balance. Invoices not paid, when due, will bear interest to date of payment at the annual rate of eighteen (18%) percent or such lower rate as may be the maximum permitted by law.
4. SALES TAX
US Shipments When required by law Nikkoe will collect Federal, State and/or Local sale, use, excise, and other taxes that apply to a Customer's shipment. These taxes are in addition to the purchase price of the Products subject to an order. Customer will remit the correct tax unless Customer is tax exempt and Nikkoe has a valid signed tax exemption certificate on file. INTERNATIONAL Shipments All applicable VAT, PST, HST, and/or GST charges along with brokerage fees will be the responsibility of the Customer and due at the time of delivery.
5. DELIVERY AND TITLE
Domestic shipments by Nikkoe are typically FCA point of shipment from Nikko's facility, and the amount of all transportation charges will be paid to Nikkoe by the Customer in addition to the purchase price of the Products. Subject to Nikko's right of stoppage in transit, delivery of the Products to the carrier will constitute delivery to Customer and title and risk of loss will pass to Customer. Nikkoe will make reasonable efforts to initiate shipment and schedule delivery as close as possible to Customer's requested delivery date(s). Customer acknowledges that delivery dates provided by Nikkoe are estimates only, and that Nikkoe will not be liable for failure to deliver on such dates. Selection of the carrier and delivery route will be made by Nikkoe unless specifically designated by Customer. Nikkoe reserves the right to make deliveries in installments. Delay in delivery of one installment will not entitle Customer to cancel any other installment(s). Delivery of any installment of Products within thirty (30) days after the date requested will constitute a timely delivery. Delivery of a quantity that varies from the quantity specified shall not relieve Customer of the obligation to accept delivery and pay for the Products delivered. International shipments follow the Incoterms published by the International Chamber of Commerce. An Incoterm for a Customer order is selected by Nikkoe based on Customer address, destination, and/or currency. Title transfer will be in accordance with the Incoterm selected for the shipment by Nikko. By default, if incoterm is not specified, the incoterm will be FCA point of shipment from Nikko's facility.
6. Nikko'S LIMITED WARRANTY
Nikkeo agrees to transfer to Customer whatever transferable warranties Nikkoe receives from the manufacturer of Products sold to Customer. Nikke makes no other warranty, express or implied, with respect to the Products. IN PARTICULAR, Nikkoe MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, OR RESPECTING INFRINGEMENT. Nikko's liability arising out of any sale of products to Customer is expressly limited to either (1) Refund of the purchase price paid by Customer for such Products (without interest), or (2) Repair and/or replacement of such Products, at Nikko's election, with such remedies exclusive, and excluding all others. Customer must notify Nikkoe within 30 days from date of shipment of any defective product. This warranty excludes any and all other warranties, whether oral, written, expressed, implied or statutory. Implied warranties of fitness for a particular purpose and merchantability are specifically excluded and shall not apply. Customer's obligations and Nikko's remedies with respect to defective or nonconforming products, are solely and exclusively as stated herein. Furthermore, no warranty will apply if the Product has been subject to misuse, static discharge, neglect, accident, modification, or has been soldered, or altered in any way.
7. Nikko CORPORATE RoHS COMPLIANCE AND LEAD-FREE POLICY
It is the policy of Nikko Electronics to identify and offer products to the Customer as RoHS Compliant or Lead Free, only after specific requirements have been met. Nikkoe performs no testing of product and relies solely on the manufacturer of the product for identification of RoHS Compliance and for absence of lead. Furthermore, Nikkoe makes no warranty, certification or declaration of compliance concerning said Products. Product is advertised or offered as RoHS Complaint or Lead-Free only after sufficient evidence is received from the component manufacturer; and any inventory, either in a bin or on order, has been determined to be RoHS compliant and/or Lead Free. Any relevant evidence will be filed and maintained for at least four years from the date of receipt. Nikkoe defines the term "RoHS" as supplier declared compliance to all restricted hazardous substance regulations under the ELV, WEEE or RoHS EU directives, regulations or laws. Nikkoe defines the term "Lead Free" as pertaining to any product that has been declared by a Supplier to be "Lead Free". All statements by Nikkeo of RoHS compliance are based on producer documentation.
7a. PRODUCT COUNTRY OF ORIGIN
Nikko Electronics maintains Country of Origin information on all products in its inventory. This information is provided to Customers on product labels and product shipping documents. This information is based on manufacturer-provided information according to US Treasury, US Customs Regulations. Our manufacturers do not provide Nikkoe with the country of origin of each raw material or subcomponent that is incorporated into the Manufacturer's final product.
8. LIMITATION OF LIABILITIES
IN NO EVENT SHALL Nikkoe BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE including, but not limited to, damages resulting from loss of profit or revenue, recall costs, claims for service interruptions or failure to supply downtime, testing, installation or removal costs, costs of substitute products, property damage, personal injury, death or legal expenses. Customer's recovery from Nikkoe for any claim shall not exceed the purchase price paid by Customer for the goods, irrespective of the nature of the claim, whether in warrant, contract or otherwise. CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD Nikkoe HARMLESS FROM ANY CLAIMS BROUGHT BY ANY PARTY REGARDING PRODUCTS SUPPLIED BY Nikkoe AND INCORPORATED INTO THE CUSTOMER'S PRODUCT.
9. PRODUCT SAFETY NOTICE AND RESTRICTIONS
Products are intended for commercial use only. Products are traceable to the OEM manufacturer and Lot/Date Code where available and when requested at the time of Customer order. Nikkoe does not determine the specifications or conduct any performance or safety testing of any products that it sells. Specification sheets provided to Customers are produced by the manufacturer or transcribed from information provided by the manufacturer. Nikkoe is not a supplier of Qualified Product Listing (QPL) components. Customer agrees that all purchases are for commercial or other applications that do not require QPL components. Any reference to military specifications on our website is for reference only and does not modify these terms and conditions. Nikkoe does not participate in any product safety engineering, product safety review or product safety testing. Nikkoe cannot provide any safety testing, safety evaluation or safety engineering services. Products sold by Nikkoe are not designed, intended or authorized for use in life support, life sustaining, human implantable, nuclear facilities, flight control systems, or other applications in which the failure of such Products could result in personal injury, loss of life or catastrophic property damage. This includes, but is not limited to, Class III medical devices as defined by the US Food and Drug Administration (FDA) and Federal Aviation Administration (FAA) or other airworthiness applications. If Customer uses or sells the Products for use in any such applications: (1) Customer acknowledges that such use or sale is at Customer's sole risk; (2) Customer agrees that Nikkoe and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD Nikkoe AND THE MANUFACTURER OF THE PRODUCTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, COSTS, EXPENSES AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH SUCH USE OR SALE.
10. STATEMENTS AND ADVICE
If statements, opinions, or advice, technical or otherwise, are offered, or given to a Customer, such statements, opinions, or advice will be deemed to be given as an accommodation to Customer and without charge. Nikkoe shall have no responsibility or liability for the content, or use of such statements or advice. Nikkoe Technical support is provided by telephone and, therefore, extremely limited in scope which prevents us from the direct participation in the design of any Customer products. We do not conduct product suitability studies or engineering reviews of products that we sell, nor for the final product that a Customer produces.
11. NON-CANCELABLE/NON-RETURNABLE PRODUCTS
From time to time, Nikkoe will notify Customer of a product that is "NC/NR", (Non-Cancelable/Non-Returnable) upon determining that an order requires such conditions of sale. Customer understands that "NC/NR" products are obtained by Nikkoe from the manufacturer specifically for the Customer. Irrespective of circumstances, the Customer agrees that "NC/NR" products may not be cancelled, returned or rescheduled by the Customer without the agreement of both Nikko's supplier and the written consent of Nikko Electronics. Any QML product purchased from Nikkoe is Non-Cancelable/Non-Returnable. Products labeled as moisture sensitive or Electro-Static Sensitive (ESD) are NC/NR if the packaging has been opened. All products purchased by Customers classified by Nikkoe as Electronic Component Distributors or Brokers shall be deemed Non-Cancellable/Non-Returnable.
12. INTELLECTUAL PROPERTY
If an order includes software or other intellectual property, such software or other intellectual property is provided by Nikkoe to Customer subject to the copyright and user license, the terms and conditions of which are set forth in the license agreement accompanying such software or other intellectual property. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement. Unopened software may be returned for credit. Opened software may not be returned unless defective.
13. FORCE MAJEURE
Nikkoe will not be liable for delays in delivery or for failure to perform its obligations due to causes beyond its reasonable control including, but not limited to, product allocations, material shortages, labor disputes, transportation delays, unforeseen circumstances, acts of God, acts or omissions of other parties, acts or omissions of civil or military authorities, Government priorities, fires, strikes, floods, severe weather conditions, computer interruptions, terrorism, epidemics, quarantine restrictions, riots or war. Nikko's time for delivery or performance will be extended by the period of such delay or Nikkoe may, at its option, cancel any order or remaining part thereof, without liability by giving notice to Customer.
14. EXPORT CONTROL POLICY
Nikkoe is committed to compliance with all U.S., EU member state, UK and selected foreign export, import, customs and economic sanctions laws, regulations, rules and orders (collectively, "Trade Control Laws") to which products purchased from Nikkoe apply. Nikkoe will not sell or ship to embargoed countries or individuals and entities who are restricted by a) the U.S. Treasury Office of Foreign Asset Control ("OFAC") list of Specially Designated Nationals, including entities that are owned 50% or more by such individuals or entities; b) the U.S. Commerce Department’s Bureau of Industry and Security ("BIS") Denied Persons List, Entity List, Unverified List, and Military End User list, or for military end use in China, Russia, Venezuela, Burma and Cambodia; and c) Department of State’s AECA Debarred List, among others. Nikkoe will not export Products prohibited by the Export Administration Regulations ("EAR"). Nikko’s policy prohibits exports of any product that requires an export license pursuant to the EAR or Department of State’s International Traffic in Arms Regulations ("ITAR"). Nikkoe participates in BIS Export Enforcement and OFAC transaction reporting. Nikkoe immediately report suspicious purchases to the proper authorities for investigation. In light of the numerous sanctions imposed upon Russia and Belarus by governments and organizations around the world, Nikkoe will not ship any Products to Russia, the Donetsk and Luhansk regions of Ukraine, and Belarus.
14.1 Resale/Transfer/Re-Export of Products
Customer understands and acknowledges that all Products purchased from Nikkoe are subject to Trade Control Laws and shall only be resold, transferred, re-exported, or dispositioned in in any other way, in strict compliance with these laws. Customer acknowledges Products purchased from Nikkoe shall may not be brokered transshipped, resold, transferred, re-exported, or dispositioned in in any other way to any company, entity, or person identified by BIS: BIS Parties of Concern and to countries, individuals or organizations identified by OFAC: Specially-Designated-Nationals-and-Blocked-Persons-list; and, Sanctions-programs-and-country-information including sanctions imposed on Iran, North Korea, Cuba, Syria, Venezuela, Sudan, Russia, the Crimea, Donetsk and Luhansk regions of Ukraine, and Belarus, among others. Customer acknowledges that, before exporting or reexporting, any Product, the Customer is responsible for determining if the Product is controlled, prohibited or restricted for export or import and to obtain any license to export, re-export, or import as may be required by Trade Control Laws.
14.2 Export Classification Disclaimer
Any use made of Nikkoe classifications, whether it be ECCNs or any variation of Harmonized Tariff codes, is without recourse to Nikkoe and at the user’s risk. Export classifications are subject to change. If you export or re-export, your company, as the exporter of record, is responsible for determining the correct classification of any item at the time of export. Any export classification by Nikkoe is for Nikko’s use only and shall not be construed as a representation, or warranty regarding the proper export classification nor relied upon to make licensing determinations.
15. GENERAL
The Terms and Conditions may not be modified or cancelled without Nikko's written agreement. Accordingly, goods furnished and services rendered by Nikkoe are sold only on the terms and conditions stated herein. The sale of Products hereunder will be governed by these Terms and Conditions, notwithstanding contrary or additional terms and conditions in any purchase order, planning schedule, acknowledgment, confirmation or any other form or document issued by either party affecting the purchase and/or sale of Products. Notwithstanding any terms and conditions on Customer's order, the information and conditions on the Credit Application are controlling over Customer and Nikkoe. Any conflicting statements or terms listed on the Customer purchase orders, invoices, confirmations or other Customer generated documents ("Customer Documents"), whether heretofore or hereafter submitted, are negated by submission of the Credit Application and the issuance of credit by Nikkoe, and all different or additional terms and conditions contained in any Customer Documents are hereby objected to by Nikkoe. Nikko's performance of any contract is expressly made conditional on Customer's agreement to Nikko's Terms and Conditions of Sale, unless otherwise specifically agreed upon in writing by Nikkoe. In the absence of such agreement, commencement of performance and/or delivery shall be for Customer's convenience only and shall not be deemed or construed to be acceptance of Customer's terms and conditions or any of them. If a contract is not earlier formed by mutual agreement in writing, acceptance by Customer of any goods or services shall be deemed acceptance by Customer of the terms and conditions stated herein. No rights, duties, agreements or obligations hereunder, may be assigned or transferred by operation of law, merger or otherwise, without the prior written consent of Nikkoe. The obligations, rights, terms and conditions hereof will be binding on the parties hereto and their respective successors and assigns. The waiver or breach of any term, condition or covenant hereof, or default under any provision hereof, will not be deemed to constitute a waiver of any other term, condition, or covenant contained herein, or of any subsequent breach or default of any kind or nature. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction, or affecting the validity or enforceability of such provision in any other jurisdiction. The Terms and Conditions will be governed by and construed in accordance with the laws of the state of Texas and the applicable laws of the United States.