Noreast Co. Ltd. Terms & Conditions of Sale & Delivery
The “Company” hereinafter references Noreast Electronics Co. Ltd. the seller as set out on the Quotation and Order Confirmation, while the “Buyer” references the addressee set out on the said Quotation or Order confirmation.
THESE TERMS AND CONDITIONS ARE APPLICABLE TO ALL PURCHASES OF PRODUCT FROM THE COMPANY AND ARE AUTOMATICALLY INCORPORATED INTO EVERY PURCHASE ORDER ACCEPTED BY THE COMPANY (A “PURCHASE ORDER”). ACCEPTANCE IS EXPRESSLY MADE SUBJECT TO THESE TERMS AND CONDITIONS. NONE OF THE TERMS AND CONDITIONS MAY BE ADDED TO, MODIFIED, SUPERSEDED OR OTHERWISE CHANGED EXCEPT AS AGREED IN WRITING BY THE COMPANY. ALL ORDERS RECEIVED FROM THE BUYER BY THE COMPANY SHALL BE GOVERNED ONLY BY THESE TERMS AND CONDITIONS REGARDLESS OF ANY TERMS THAT MAY BE STATED ON BUYER’S PURCHASE ORDER, RELEASE OR OTHER DOCUMENT FOR THE PURCHASE OF PRODUCTS. IN THE EVENT OF A CONFLICT BETWEEN ANY SUCH TERMS INCLUDED IN THE BUYER’S PURCHASE ORDER AND THESE TERMS AND CONDITIONS, THESE TERMS AND CONDITIONS SHALL GOVERN. ANY AMENDMENTS TO THESE TERMS AND CONDITIONS MUST BE EXPRESSLY SET FORTH AS SUCH IN AN ACCEPTED PURCHASE ORDER.
All products will be shipped in accordance with the terms of delivery agreed between the parties in an accepted purchase order (“Purchase Order”) as set out in the Company’s Order Confirmation. All shipments should be inspected by the Buyer immediately upon receipt and should there be evidence of damage or loss in transit, claims or tracers upon carrier must be filed by the Seller & Buyer. The Company will assist in tracing shipments upon request. Any trade terms mentioned shall be interpreted in accordance with the Incoterms of the International Chamber of Commerce, unless otherwise specified in the Quotation and Order Confirmation and/or Acknowledgement.
The Company will exercise reasonable business practice to meet the delivery date(s) set forth in the Purchase Order or as otherwise agreed, provided it has been given all shipping information sufficiently prior to the shipment date(s)
4. DELIVERY DELAY
Compliance with the agreed date(s) of delivery is conditioned upon receiving the necessary documents, confirmations, permits and releases, including export licenses, in time and that such documents, confirmations, permits and releases were not suspended or revoked before delivery.
5. EXCUSABLE DELAY
The Company will be excused from delays in delivery and performance of contractual obligations under any Purchase Order by acts or omissions that are beyond the reasonable control and without the fault or negligence of the Company including but not limited to (1) delays or refusals to grant an export license or the suspension or revocation thereof, (2) any other acts of any government that would limit the ability for contract performance, (3) labor strikes or lockouts, (4) shortages or inability to obtain materials or components, (5) explosion, riots, strife, insurrection, civil disobedience, armed conflict, terrorism or war, declared or not (or impending threat of any of the foregoing, if such threat might reasonably be expected to cause injury to people or property), (6) quarantines or regional medical crisis’, (7) fires, earthquakes, floods, severe weather conditions, or any other acts of God. The due date of any performance affected by such an event will be extended accordingly.
The Company hereby warrants that all products furnished under the Buyer’s Purchase Order shall: (i) conform to the specifications agreed to by the parties in writing; (ii) shall be free from defects in material and workmanship.
In no event shall the Company have any obligation to make repairs, replacements or corrections required, in whole or in part, as a result of: (i) normal wear and tear, (ii) accident, disaster or force majeure event (as set forth in Section 5, (iii) misuse, fault or negligence of the Buyer, (iv) causes external to the products such as, but not limited to, power failure or electrical power surges; (v) improper storage and handling of the products; (vi) use of the products in a manner for which they were not designed; or (vii) alteration or modification made by anyone other than the Company to any products furnished by the Company. The Warranties provided hereunder shall extend for one (1) year from the date of receipt of the product by the Buyer and thereafter shall be terminated.
All the rejected defective or non-conforming products shall be returned to the Company in accordance with the Company’s RMA return procedure. The Company will be responsible for the commercially reasonable cost of returning any defective products. No product shall be returned to the Company without its prior written consent.
THE OBLIGATIONS CREATED BY THIS WARRANTY STATEMENT TO REPAIR, REPLACE OR REFUND FOR A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF THE BUYER IN THE EVENT OF A DEFECTIVE PRODUCT. THE COMPANY DISCLAIMS ALL OTHER WARRANTIES AND REMEDIES WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY
EXCEPT AS LIMITED BY APLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR CONTINGENT DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION LOSSES AND LOSS OF GOODWILL (COLLECTIVELY, “DAMAGES”), OR UNDER ANY OTHER THEORY OF LAW, NOR FOR ANY DAMAGE THAT MAY BE CAUSED BY A DELAY IN DELIVERY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY REASON. THESE LIMITATIONS REFLECT A SEPARATE ALLOCATION OF RISK AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
FURTHER, EXCEPT AS EXPRESSLY INDICATED IN WRITING BY THE COMPANY, THE PRODUCTS ARE NOT DESIGNED FOR USE IN MEDICAL, LIFE-SUSTAINING APPLICATIONS OR FOR ANY OTHER APPLICATION IN WHICH THE FAILURE OF ANY PRODUCT COULD RESULT IN PERONAL INJURY OR DEATH. FURTHER, THE COMPANY DOES NOT RECOMMEND, ENDORSE OR SUPPORT THE SALE OF PRODUCTS IN LIFE SUPPORT SYSTEMS. NOTWITHSTANDING ANY ACKNOWLEDGEMENT OR OTHER AGREEMENT BY THE COMPANY THAT PRODUCTS SOLD HEREUNDER SHALL BE USED IN MEDICAL, LIFE-SUSTAINING OR FOR ANY USE IN WHICH THE FAILURE OF THE PRODUCT COULD RESULT IN PERSONAL INJURY OR DEATH, THE BUYER USING OR SELLING ANY SUCH PRODUCT, DOES SO AT ITS OWN RISK AND THE BUYER AGREES TO FULLY INDEMNIFY AND HOLD THE COMPANY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, EXPENSES AND DAMAGES ARISING OR RESULTING IN CONNECTION WITH SUCH USE OR SALE, INCLUDING ATTORNEYS FEES, EVEN IF SUCH CLAIM ALLEGES THAT THE COMPANY WAS NEGLIGENT REGARDING THE DESIGN OR MANUFACTURE OF THE PRODUCTS.
NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS, THE QUOTATION OR THE ACCEPTED PURCHASE ORDER, THE COMPANY’S LIABILITY HEREUNDER FOR ANY MATTERS SHALL BE LIMITED TO THE PURCHASE PRICE OF THE PRODUCT SOLD HEREUNDER.
8. OWNERSHIP OF SPECIAL ITEMS
Payment by the Buyer for charges, regardless of form, related to tools, dies, jigs, fixtures and/or equipment used specially for the production of its order will not convey ownership to the Buyer of such items, which is expressly retained by the Company, unless specifically agreed upon in an acknowledgement or other document in writing signed by the Company.
9. PRICES & TAXES
The prices set forth in the accepted Purchase Order, supersede all previous prices or quotations in whatever format. All quotations are in effect for a period of thirty (30) days, except as may be specifically noted on the face of the quotation. The prices shown will not include sales, excise or other government charges payable by the Company to Federal, Provincial, State or local authorities. Any such tax, duty or charges now or hereafter imposed upon the sale or shipment of the product to the Buyer will be added to the purchase price. The Buyer agrees to reimburse the Company for such tax or charge or provide the Company with an acceptable exemption certificate. It is fully understood that it is a matter of principle to these Terms and Conditions that, unless expressly stated otherwise, the prices specified reflect a standard allocation of risk provided by the limited remedies and limitations of liability set forth here. Any modification of the allocation of risk would affect the prices. Failure of any limited remedy in these Terms and Conditions to fulfill its essential purpose shall not be ground to set aside the limitations of the Company’s liability.
Payment terms are payment due in full Net 30 days from invoice date, unless other payment terms have been agreed upon in writing between the parties prior to the sale. If payment is not received in full by the due date, at the company’s discretion all in transit shipments and any new orders will be placed on hold. All in transit shipments and placement of new orders will only commence once payment has been made in full for any outstanding invoices
If at any time the financial condition of the Buyer so warrants, or if the Buyer fails to make payment when due, or defaults in any way, the Company may either alter the terms of payment, suspend credit and or withhold further shipment or pursue any remedies available at law or under these Terms and Conditions. In such event, the Company will be entitled to compensation from the Buyer for its reasonable expenses, including attorney’s fees.
In the event the Buyer is late in payment of an invoice hereunder, all such amounts in arrears shall bear interest at the rate of One (1.0%)_Percent per month, compounded monthly payable forthwith. In addition, in the event the Buyer is in default of payment of any applicable invoice, the Company shall be entitled to impose conditions respecting the delivery of any further product including, without limitation, COD, CIA (cash in advance), payment of a deposit up to the entire amount of the invoice or other reasonable terms of security.
The Buyer may not cancel its order or any part thereof. All parts are quoted and sold as (NCNR) non-cancellable, non-returnable.
If the Buyer makes any changes in its drawings, designs or specifications on any existing order that causes an increase or decrease in the cost of performance of the contract, or if such changes result in rework or obsolescence, an equitable adjustment shall be made to the affected contract and such changes shall be incorporated into a written change order signed by the Company and the Buyer.
The buyer will provide 28-days advanced notification of the following changes: 1) customer location; 2) design; 3) process; or material changes; each to the extent affecting the form, fit, function, reliability or manufacturability of the buyer’s products. Examples include changes in raw materials, lead frame material or design, manufacturing location, component package material or design.
Any changes resulting in a new projected delivery date will be confirmed in writing by the Company representative and Buyer.
The Company will defend, or at its option, settle the portion of any action brought against the Buyer by an unaffiliated third party to the extent the third party asserts that the products sold by the Company to the Buyer under these Terms and Conditions directly infringe the third party’s United States or Canadian patent, copyright or trademark (“an Intellectual Property Infringement Claim”), and the Company will pay those costs and damages (including reasonable attorney’s fees) awarded against the Buyer in a final non-appealable judgement that are specifically attributable to such Intellectual Property Infringement Claim or settlement agreed to by the Company. This is on the condition that the Buyer promptly notifies the Company in writing, allows the Company to assume the defense and provides information and assistance (at the Company’s expense) for such defense.
In no event will the Company have any indemnification obligation or any other liability under this section if the Intellectual Property Infringement Claim arises from any one of the following: (i) compliance with the Buyer’s design requirements, specifications or instructions; (ii) the combination of a product furnished to the Buyer with any other product not supplied by the Company; (iii) modifications made by anyone other than the Company to a product furnished to the Buyer; (iv) a product furnished to the Buyer being used in a manner for which the product was not designed or in any manner not otherwise authorized under these Terms and Conditions or other written agreement between the parties; (v) the Buyer’s rejection of the Company’s recommended changes or modifications to a product, where the Company has offered to implement those changes or modifications; or (vi) products manufactured or designed by the Buyer; (vii) the Buyer’s negligence or more culpable act or omission (including recklessness and willful misconduct); or (ix) bad faith failure to comply with any of the material obligations set forth in these Terms and Conditions.
In the event that any of exceptions (i) through (ix) apply, or actions, statements or admissions by the Buyer have a material adverse impact on the Intellectual Property Infringement Claim, and as a result the Company incurs any costs or damages, including reasonable attorney’s fees, the Buyer shall indemnify and hold the Company harmless from and against all such expenses. In no event will the Company be liable for enhanced or indirect damages resulting from willful infringement by the Buyer or any punitive damages resulting from the Buyer’s actions or inactions, nor will the Company be liable for any of the Buyer’s or the Buyer’s customer’s lost profits, indirect, special or consequential damages or business interruption expenses. The Company shall have no liability for actual or alleged intellectual property infringement or misappropriation, or representation or warranty of noninfringement, except as provided in this Section 13.
14. PROPRIETORY INFORMATION AND PUBLICITY
Intellectual Property” or “Intellectual Property Rights” means all current and future rights in copyrights, trade secrets, trademarks, patents, design rights, trade dress, and any other intellectual property rights that may exist anywhere in the world, including, in each case whether unregistered, registered or comprising an application for registration, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of the foregoing.
Subject to any rights, title or interests expressly granted by these Terms and Conditions, the Company shall retain sole ownership of all Intellectual Property that (a) was the property of the Company prior to the effective date of these Terms and Conditions, or (b) is independently developed or acquired outside the scope of these Terms and Conditions. The Buyer shall not acquire any right, title, or interest in or to any Intellectual Property of the Company unless otherwise expressly provided herein.
The Company owns the entire right, title, and interest, including all inventions (whether patentable or not), patents, copyrights, and other rights in Intellectual Property developed in performance of these Terms and Conditions or developed for the Company or derived from use of the Company facilities, personnel, or proprietary information, unless otherwise agreed to in writing by the parties. For avoidance of doubt, all Intellectual Property developed outside of these Terms and Conditions shall remain the property of its respective owner and except as explicitly provided in these Terms and Conditions, neither party receives any right to such Intellectual Property. No patent, copyright, trademark, or other proprietary right is licensed, granted, or otherwise transferred by the Company pursuant to these Terms and Conditions or any disclosure hereunder.
Except where intended to serve as instructions for use or advertising matter, all technical information in relation to the Company’s products and their maintenance remains the Company’s property and may without its consent not to be utilized or copied, reproduced, transmitted or communicated to third parties. Illustrations, catalogues, colors, drawings, dimensions, statements of weight and measurements and media presentations made available by the Company are only meant to present a general idea of the products to which they refer; they are approximate only and therefore not binding upon the Company. Neither party shall, without the other party’s prior written consent, use the other party’s name or trademark as such and/or use same in connection with any advertisement or sales literature.
Both the Company and the Buyer shall protect each other’s confidential and proprietary information using the same degree of care used to protect their own confidential or proprietary information, but in any case no less than a reasonable degree of care. In the event of a conflict between the terms of a nondisclosure agreement entered into between the Company and the Buyer (“NDA”) and these Terms and Conditions, the terms of the NDA shall control.
These Terms and Conditions shall be binding upon and inure to the benefit of the successors and assigns of the Company but shall not be assignable by the Buyer voluntarily or involuntarily without the written consent of the Company.
In the event that any provision(s) of these Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions hereof.
The failure on the part of either party to exercise, or any delay in exercising, any right or remedy hereunder shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other or future exercise thereof or the exercise of any other right or remedy granted hereby or by any related document or by law.
18. SET OFF
The Buyer hereby waives any and all rights to offset existing and future claims against any payments due for products sold hereunder or under any other agreement that the Buyer and the Company may enter into and agrees to pay the amounts due regardless of any claimed offset which may be asserted by the Buyer or on its behalf.
19. APPLICABLE LAW
This document and any resulting contract shall be governed by and construed in accordance with the laws of the Province or Country of the Company as set out in the preamble, exclusive of its choice of law rules and the UN convention for the International Sales of Goods.
The aforesaid terms and conditions along with the prices, quantities, delivery schedules and other provisions and instructions on the written Quotation and Order Confirmation and/or Acknowledgement document shall constitute the entire agreement between the Company and the Buyer pertaining to any resulting contract. They can only be modified in writing.
21. EXPORT CONTROL
These Terms and Conditions and any related Purchase Order(s) are made subject to any and all applicable export laws and regulations, including but not limited to the International Traffic in Arms Regulations or Export Administration Act Regulations (“Export Regulations”), concerning the export of products or technical information (“Restricted Information”) from the Canada or other countries that may be imposed on the parties from time to time. The Company and the Buyer each agrees that it shall not export, directly or indirectly, any Restricted Information acquired from the other party under these or any products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with applicable law. Further, a disclosing party shall identify any Restricted Information to a receiving party in advance of disclosure. In the event that Restricted Information is disclosed to a receiving party, for each unique item and every transference of data, such Restricted Information must be clearly and prominently identified with a marking or legend of a disclosing party’s language stating the technical data is subject to the applicable Export Regulations.
The Buyer acknowledges having read and understood these Terms and Conditions and agrees to be bound by them.
If you would like to contact us to understand more about this Agreement or wish to contact us concerning any matter relating to it, you may write a letter to 1175 Tupper Street, Hawkesbury, Ontario, Canada, K6A 3T5 This document was last updated on September 30, 2020.