1. Applicability.
(a) These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) and services (“Services”) by Yuasa-YI Inc. (“Yuasa-YI”) to the buyer named on the Sales Confirmation (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
(b) The accompanying quotation (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 of 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. Seller shall have the right to reject any of Buyer’s purchase orders for any reason.
2. Delivery of Goods.
(a) The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order Yuasa-YI shall not be liable for any delays, loss, or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Yuasa-YI shall deliver the Goods to the location set forth in the Sales Confirmation (the “Delivery Point”) using Yuasa-YI’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within 10 days of Yuasa-YI’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, and will unload and release all transportation equipment promptly so Yuasa-YI incurs no demurrage or other expense.
(c) Yuasa-YI 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 Yuasa-YI’s notice that the Goods have been delivered at the Delivery Point, or if Yuasa-YI is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Yuasa-YI, 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).
(e) Yuasa-YI shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only.
(f) With respect to the Services, Buyer shall (i) cooperate with Yuasa-YI in all matters relating to the Services and provide such access to Buyer’s premises, and such accommodation and other facilities as may reasonably be requested by Yuasa-YI, for the purposes of performing the Services; (ii) respond promptly to any Yuasa-YI request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Yuasa-YI to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Yuasa-YI may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
3. Shipping Terms.
Delivery of the Goods shall be made FOB (Incoterms® 2020) Delivery Point.
4. Title and Risk of Loss.
Title and risk of loss pass 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 Yuasa-YI 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 Uniform Commercial Code of the relevant State.
5. Buyer’s Acts or Omissions.
If Yuasa-YI’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Yuasa-YI shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within 5 days upon receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Yuasa-YI in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Yuasa-YI. “Nonconforming Goods” means only the following: (i) product shipped is different from identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Yuasa-YI of any Nonconforming Goods, Yuasa-YI 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, at its expense and risk of loss, the Nonconforming Goods to Yuasa-YI’s facility located at 1320 Landmeier Road Elk Grove Village, IL 60007. If Yuasa-YI exercises its option to replace Nonconforming Goods, Yuasa-YI shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Yuasa-YI.
7. Price.
(a) Buyer shall purchase the Goods and Services from Yuasa-YI at the prices (the “Prices”) set forth in the Sales Confirmation.
(b) Buyer agrees to reimburse Yuasa-YI for all reasonable travel and out-of-pocket expenses incurred by Yuasa-YI in connection with the performance of the Services.
(c) 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, Yuasa-YI’s income, revenues, gross receipts, personal or real property, or other assets.
8. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Yuasa-YI as set forth in the Sales Confirmation. If payment terms are not specified in the Sales Confirmation, Buyer shall pay all invoiced amounts due to Yuasa-YI on receipt of Yuasa-YI’s invoice. Buyer shall make all payments hereunder by wire transfer and in US dollars.
(b) In the event payment terms needs to be modified, including where payments should be made upon completion of certain milestone, and such milestone needs to be modified, both Yuasa-YI and Buyer shall discuss in good faith and agree upon modified payment terms.
(c) 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. Buyer shall reimburse Yuasa-YI for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Yuasa-YI does not waive by the exercise of any rights hereunder), Yuasa-YI shall be entitled to suspend the delivery of any Goods or performance of any Services and stop Goods in transit if Buyer fails to pay any amounts when due hereunder.
(d) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Yuasa-YI, whether relating to Yuasa-YI’s breach, bankruptcy, or otherwise.
9. No Warranty.
(a) SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(b) ANY DRAWINGS, DESIGNS, AND SPECIFICATIONS PROVIDED OR AGREED UPON ON THE SALES CONFIRMATION OR OTHERWISE IS FOR REFERENCE PURPOSE ONLY. SELLER MAKES NO WARRANTY THAT THAT GOODS WILL COMPLY WITH SUCH DRAWINGS, DESIGNS, AND SPECIFICATIONS, UNLESS OTHERWISE AGREED BETWEEN BOTH PARTIES.
10. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER 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.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 10(b) shall not apply to (i) liability resulting from Yuasa-YI’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Yuasa-YI’s acts or omissions.
11. 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.
12. Termination.
In addition to any remedies that may be provided under these Terms, Yuasa-YI may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) 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.
13. Export Control.
Yuasa-YI may cancel this Agreement without liability or penalty if implementation of this Agreement may result in violation of any export control laws or regulations administered by the Ministry of Economy, Trade and Industry of Japan, U.S. Commerce Department, OFAC, or any other government agency, including if the Ministry of Economy, Trade and Industry of Japan determines that the Goods are intended for a prohibited end-use, including, without limitation, for activities related to nuclear proliferation, chemical or biological weapons, missile proliferation, military end use, or military-intelligence end use.
14. Waiver.
No waiver by Yuasa-YI of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Yuasa-YI. 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.
15. Confidential Information.
All non-public, confidential or proprietary information of Yuasa-YI, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Yuasa-YI to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Yuasa-YI in writing. Upon Yuasa-YI’s request, Buyer shall promptly return all documents and other materials received from Yuasa-YI. Yuasa-YI shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
16. Force Majeure.
No party shall be liable or responsible to the other party, or 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 Yuasa-YI hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (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; (f) national or regional emergency including pandemic and epidemic; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice to the other Party, within 5 days of the Force Majeure Event, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under this Section, the other Party may thereafter terminate this Agreement upon 10 days’ written notice.
17. Assignment.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Yuasa-YI. 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.
18. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and 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.
20. Governing Law.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois.
21. Submission to Jurisdiction.
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 Illinois in each case located in the City of Chicago and County of Cook, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
22. Notices.
All notices, requests, 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. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). 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.
23. Severability.
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.
24. Survival.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
25. Amendment and Modification.
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.