Goods sold by Nuvik USA, Inc. (“Nuvik”) are expressly subject to the terms and conditions set forth below. Any different, additional, or conflicting terms or conditions in Buyer’s purchase order, order, or similar communication are objected to, and shall not be binding on Nuvik unless expressly agreed to in writing by Nuvik and neither these terms and conditions nor shipment nor performance by Nuvik shall constitute an acceptance of any of Buyer’s conflicting terms. Buyer’s payment for the Goods constitutes an acceptance of Nuvik’s terms and conditions, and Buyer’s acceptance is expressly limited to the terms and conditions provided below.
(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by the seller Nuvik to the purchaser named on the issued purchase order (“Buyer”) (Nuvik and the Buyer are collectively referred to as the “parties”).
(b) The accompanying Sales Confirmation (the “Sales Confirmation” and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
(c) In the event these Terms are part of a written supply agreement, the term “Order” used herein shall mean any purchase order issued under the Supply Agreement.
(a) The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Nuvik shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Nuvik shall deliver the Goods to the address reflected on the Buyer’s purchase order for shipment (the “Delivery Point”) using Nuvik’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within upon Nuvik’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
(c) Nuvik may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Nuvik’s notice that the Goods have been delivered at the Delivery Point: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Nuvik, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
Any liability of Nuvik for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
4. Shipping Terms.
Nuvik shall make delivery in accordance with the terms on the face of the Sales Confirmation.
5. Title and Risk of Loss.
Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Nuvik a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Ohio Uniform Commercial Code O.R.C. § 1309 et seq.
6. Amendment and Modification.
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
7. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within five (5) days of delivery (the “Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Nuvik in writing of any nonconforming goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Nuvik.
(b) If Buyer timely notifies Nuvik of any nonconforming goods, Nuvik shall, in its sole discretion:
(i) replace such nonconforming goods with conforming goods; or
(ii) credit or refund the price for such nonconforming goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship the Nonconforming Goods to Nuvik’s facility identified on Nuvik’s Order Acknowledgement. If Nuvik exercises its option to replace Nonconforming Goods, Nuvik shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Nuvik’s expense and risk of loss, the replacement goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of nonconforming goods. Except as provided under Section 8(b), all sales of goods to Buyer are made on a one-way basis and Buyer has no right to return goods purchased under an Order to Nuvik.
(a) Buyer shall purchase the Goods from Nuvik at the price(s) reflected on the Buyer’s purchase order that Nuvik accepts through acceptance and acknowledgment of Buyer’s purchase order. If Nuvik’s costs should be increased by Nuvik between the Nuvik’s quote and Buyer’s issuance of a purchase order, then upon Nuvik’s notice to Buyer, these Terms shall be construed as if the increased prices were originally included in the Quote, and Buyer shall be invoiced by Nuvik on the basis of such increased prices.
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Nuvik’s income, revenues, gross receipts, personnel or real or personal property or other assets.
9. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Nuvik within thirty (30) days of Nuvik’s invoice.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Nuvik, whether relating to Nuvik’s breach, bankruptcy, or otherwise.
10. Remedies For Non-Payment.
Buyer shall reimburse Nuvik for all costs incurred in collecting any late payments, including, without limitation, any fees associated with sending Buyer’s account to commercial collection, and any attorneys’ fees or court costs. In addition to all other remedies available under these Terms or at law (which Nuvik does not waive by the exercise of any rights hereunder), Nuvik shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for fourteen (14) days following written notice thereof.
11. Limitation Of Warranty.
(a) NUVIK MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(b) With respect to any such Goods that Buyer identifies as nonconforming, Buyer’s sole remedy shall be at Buyer’s election to either direct Nuvik to: (i) repair or replace such Goods (or the defective part); or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Nuvik so requests, Buyer shall, at Nuvik’s expense, return such Goods to Nuvik.
(c) The Nuvik shall not be obligated to take any action described in Section 11(b) unless: (i) Buyer gives written notice of the defect or nonconformity, reasonably described, to Nuvik within thirty (30) days of the time when Buyer discovers or ought to have discovered the defect or nonconformity; (ii) Nuvik is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Nuvik) returns such Goods to Nuvik’s place of business at Nuvik’s cost for the examination to take place there; and (iii) Nuvik reasonably verifies Buyer’s claim that the Goods are defective or otherwise nonconforming.
(d) The Nuvik shall not be obligated to take any action described in Section 11(b) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Nuvik’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Nuvik.
(e) THE REMEDIES SET FORTH IN SECTION 11(b) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND NUVIK’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY CLAIM OR CAUSE OF ACTION.
12. Limitation of Liability.
(a) IN NO EVENT SHALL NUVIK BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, 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 NUVIK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL NUVIK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SALE OF THE GOODS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS REFLECTED ON THE ORDER, OR PURCHASE ORDER, PAID TO NUVIK FOR THE GOODS SOLD HEREUNDER OR FIVE THOUSAND DOLLARS ($5,000.00), WHICHEVER IS LESS.
(c) The limitation of liability set forth in Section 12(b), above, shall not apply to (i) liability resulting from Nuvik’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Nuvik’s acts or omissions.
Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than the amount of Goods purchased with financially sound and reputable insurers. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Nuvik’s insurers and Nuvik.
14. Compliance with Law.
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
In addition to any remedies that may be provided under these Terms, Nuvik may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
No waiver by Nuvik of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Nuvik. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Force Majeure.
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Nuvik hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and (e) other similar events beyond the control of the Impacted Party.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Nuvik. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
20. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties to the Order or purchase order together with their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
21. Governing Law, Jurisdiction, & Venue.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the City of Columbus and County of Franklin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.