As used in these Terms and Conditions of Sale (the “Terms”), “Seller” means KOBE Bearing Company together with any of its affiliated companies. “Buyer” means the person or entity that is applying to the Seller for credit and/or that wishes to purchase or purchases goods or services from Seller.
THESE TERMS APPLY TO ALL QUOTATIONS AND OFFERS MADE, AND PURCHASE ORDERS ACKNOWLEDGED OR ACCEPTED, BY SELLER. TO THE EXTENT THAT THESE TERMS CONFLICT WITH OR ARE DIFFERENT FROM THOSE CONTAINED IN ANY BUYER PURCHASE ORDER OR BUYER PROCUREMENT DOCUMENTS, THESE TERMS WILL CONTROL. ALL OF BUYER’S CONFLICTING OR ADDITIONAL PROPOSED TERMS OF SALE ARE EXPRESSLY REJECTED AND BUYER AGREES THAT THEY WILL NOT BECOME PART OF THE PARTIES’ CONTRACT OF SALE. BUYER’S ACCEPTANCE OF THE GOODS SHALL CONCLUSIVELY CONFIRM ASSENT TO THESE TERMS. ANY SELLER ACKNOWLEDGEMENT OR RECEIPT OF A BUYER PURCHASE ORDER OR SIMILAR DOCUMENT WITHOUT WRITTEN OBJECTION IS UNDERSTOOD BY BUYER TO BE AN ACCOMMODATION BY SELLER FOR BUYER’S ACCOUNTING AND ORDERING CONVENIENCE ONLY, AND NO TERMS OF ANY SUCH DOCUMENT OR ORDER MAY CONTRADICT, MODIFY OR SUPPLEMENT THESE TERMS ABSENT A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED OFFICER OF BUYER NOTING THE SPECIFIC LANGUAGE OR PROVISION(S) OF THESE TERMS AFFECTED.
Prices are subject to change without notice. All orders are accepted subject to Seller’s price in effect at the time. Buyer is responsible for shipping and insurance. All prices are in U.S. Dollars. Unless credit is extended by Seller, payment shall be made before shipment or COD, at Seller’s option. Unless otherwise stated in Seller’s quotation, acknowledgement or invoice, if credit is extended, payment terms are Net 30 days from the date of invoice. Amounts not paid when due will bear a finance charge of 1 and 1/2 percent per month or the maximum legal rate, whichever is less. Buyer will have no rights of set off against any amounts which become payable to Seller under these Terms or otherwise.
All prices are exclusive of any sales, revenue, or excise tax, duties, or other similar charges, all of which will be paid by, and are the exclusive responsibility of, Buyer.
Buyer is responsible for inspecting all products immediately upon receipt by Buyer – or for drop shipments by Seller, upon receipt by the third party to whom Seller ships products at Buyer’s direction – to determine their conformance to Buyer’s order and to determine their condition and suitability for their intended end use. All products damaged during shipment and all claims relating thereto must be made with the freight carrier in accordance with such carrier’s policies and procedures. Claims for products damaged during shipment are not covered under the limited warranty provisions of these Terms. If defective or nonconforming products tendered by Seller do not fully comply with the provisions of this Agreement, and those products timely are rejected by Buyer, Seller will have the right to cure within a reasonable time after notice by substituting a conforming tender whether or not the time for performance has passed. Any rejection of products by Buyer must be within thirty (30) days from date of delivery.
Seller will make commercially reasonable efforts to meet specified or requested delivery dates, but in no event will Seller be liable for any damages or expenses caused by delays in delivery times.
With respect to any credit sale, Buyer grants to seller a purchase money security interest in the products sold, and any proceeds thereof, as security for Buyer’s obligation to pay the purchase price and Buyer agrees to execute any financing statement or other instrument required to perfect such a security interest. When Buyer places an order, Buyer represents it is not insolvent. In the event Buyer becomes insolvent before delivery of the products, it will immediately notify Seller. The failure to notify Seller immediately will be construed as a reaffirmation of Buyer’s solvency at the time of delivery. Seller will have the right to stop delivery of the products by a bailee or other third party transporting the same if Buyer becomes insolvent, repudiates or fails to make a payment due on any prior shipment or product order, in order for Seller to withhold or reclaim the products under the provisions of the Uniform Commercial Code.
Buyer will pay all handling and other similar costs from Seller’s facilities including the costs of freight, insurance, export clearances, import duties and taxes.
The export and re-export of U.S. items is subject to regulatory requirements of the Export Administration Regulations (EAR), the Foreign Trade Regulations (FTR), International Traffic in Arms Regulations (ITAR) and other U.S. laws and regulations (collectively the “Regulations”). If at any time Buyer chooses to export/re-export products purchased from Seller, Buyer is required to comply with all the requirements under the Regulations. Certain bearings are regulated by the EAR and ITAR and require export licenses to ship out of the United States. If Buyer is unfamiliar with these regulations, Buyer should consult an attorney or U.S. government agency for assistance. Failure to comply with the Regulations may result in financial and even criminal penalties. Buyer hereby acknowledges that compliance with the Regulations is the responsibility of Buyer and not the responsibility of Seller. These compliance requirements include, without limitation, the following: (1) not selling, exporting, re-exporting, transferring or diverting any product purchased from Seller to any person, entity, country to which the export or re-export is prohibited by the Regulations; and (2) obtaining export licenses when required by the Regulations. Buyer acknowledges that it is subject to the Regulations and agrees to indemnify, defend and hold harmless Seller and its affiliates against all costs or damages that arise out of or relate to Buyer’s failure to comply with the Regulations.
No government contract regulations or clauses will apply to the products or any order for products or act to bind Seller unless specifically agreed to by Seller separately in writing signed by Seller’s President. Unless Buyer notifies Seller in writing in advance, Buyer warrants that it will not submit any request for or order to purchase products from Seller that Buyer knows or has reason to know will be used in the performance of a U.S. government contract or subcontract which incorporates or is subject to federal regulations expressly or by reference, including without limitation the Federal Acquisition Regulation (FAR), Defense Acquisition Regulation (DFAR), Armed Services Procurement Regulations (ASPR), and Cost Accounting Standards (CAS). Buyer agrees to indemnify, defend, and hold Seller harmless against any loss, liability, or damage of any kind that Seller incurs in connection with a breach of that warranty.
Subject to the terms and conditions, Kobe Bearing Company (“Kobe”) warrants to the Buyer for the warranty period indicated below that the Kobe® brand bearings it sells to Buyer (the “Products”) will be free from defects in material and workmanship when properly installed, maintained and operated.
Unless otherwise provided at the time of sale, the warranty period for each Product is one year commencing on the date the Product is shipped by Kobe to the Buyer.
This limited warranty defines Kobe’s sole and exclusive liability and Buyer’s sole and exclusive remedy for any claim arising out of, or related to, any alleged deficiency or defect in any Product sold by Kobe or its authorized distributors or dealers, even if such claim is based on tort (including negligence or strict liability), breach of contract, or any other legal theory. If the Product does not conform to this limited warranty, Buyer must notify Kobe or its authorized service representative within thirty (30) days of discovery of the nonconformity; provided, however, that Kobe shall not be liable for any claim for which notice is received by Kobe more than thirty (30) days following the expiration of the applicable warranty period for the Product. Upon receipt of timely notification from Buyer, Kobe may, at its sole option, (i) modify, repair, or replace the Product, or (ii) reimburse Buyer for any payment made by Buyer for the purchase price of the Product, with such reimbursement being pro-rated over the warranty period. At Kobe’s request and expense, Buyer will return any defective product to Kobe.
This warranty does not cover defects or damage caused by normal wear and tear; shipping or transportation damages; improper installation; abuse or misuse of the Products; unauthorized or abnormal use; negligence or accidents; material or workmanship not provided by Kobe Bearing or its authorized service centers; or fire, flood, accidental breakage, actions by third parties, and any other event outside Kobe Bearings’ reasonable control.
SELLER’S PRODUCTS ARE SOLD FOR GENERAL INDUSTRIAL USES. OTHER USES ARE NOT WARRANTED. FOR EXAMPLE, SELLER DOES NOT WARRANT OR RECOMMEND ITS PRODUCTS FOR USE IN AMUSEMENT RIDES, AIRCRAFT, TRAINS, NUCLEAR FACILITIES, OR SIMILAR APPLICATIONS. IF BUYER HAS ANY QUESTIONS ABOUT EXCLUDED USES, BUYER MUST INQUIRE OF SELLER.
THIS LIMITED WARRANTY IS KOBE’S SOLE AND EXCLUSIVE LIABILITY, AND BUYER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY CLAIM IN ANY WAY ARISING OUT OF, OR RELATED TO, ANY ALLEGED DEFICIENCY OR DEFECT IN THE PRODUCT SOLD BY KOBE; REGARDLESS OF THE NATURE OF THE LEGAL THEORY UPON WHICH THE CLAIM IS BASED. KOBE DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE FOLLOWING (AND ANY SIMILAR WARRANTIES): MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND FOR INTENDED USE.
NOTWITHSTANDING ANY WARRANTY OR OTHER PROVISION IN THESE TERMS TO THE CONTRARY, IN NO EVENT WILL KOBE BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, LOST PROFITS, EXEMPLARY, PUNITIVE, STATUTORY OR CONSEQUENTIAL DAMAGES OF ANY KIND SUSTAINED FROM ANY CAUSE OR BASED UPON ANY LEGAL THEORY, WHETHER CONTRACT, NEGLIGENCE (INCLUDING KOBE’S OWN NEGLIGENCE), STRICT TORT LIABILITY, STATUTORY OR OTHERWISE IN ANY WAY ARISING OUT OF OR RELATING TO ANY SALE BY KOBE. IN ANY EVENT, KOBE’S MAXIMUM LIABILITY TO BUYER UNDER ANY LEGAL THEORY OR CLAIM IS LIMITED TO THE PURCHASE PRICE OF THE SUBJECT PRODUCT GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS, AND BUYER AGREES TO PROCURE SUCH INSURANCE, IF ANY, AS IT DEEMS APPROPRIATE TO COVER SUCH CLAIMS. THESE LIMITATIONS APPLY DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OR OF FAILURE OF ANY REMEDY PROVIDED HEREIN. ANY LAWSUIT OR CLAIM FOR BREACH OF THIS WARRANTY MUST BE FILED WITHIN ONE (1) YEAR OF THE ACCRUAL OF THE CLAIM.
If the warranted product does not conform to this limited warranty, Buyer must notify Seller within thirty (30) days of discovery of the defect or nonconformity. Any warranty claim must be received before the end of the applicable warranty period, together with return of the claimed defective product within this same period, and must include Seller’s return authorization number (RMA#). (If you need to make a warranty return claim please contact us for a return authorization number (RMA#) prior to any return). The replacement product provided by Seller may not be manufactured by the same manufacturer that manufactured the product subject to the warranty claim. At Seller’s request and expense, Buyer will return any defective product to Seller.
At Buyer’s request and expense, Seller may, in its sole discretion, ship goods directly to a third party. Seller’s shipment of goods to a third party does not create (a) any relationship between Seller and the third party, or (b) a warranty from Seller to the third party. A third party’s remedy (if any) for any problems or issues with goods shipped by Seller lies with Buyer and not with Seller.
Seller does not warrant that the goods are suitable for their intended use. If the goods do not conform to Buyer’s order or Buyer determines that they are not suitable for their intended use, Buyer may, within 30 days of receipt, return them unused for a replacement or refund, at Seller’s option. Non-warranty returns are subject to a 10% restocking fee. Product returned must be unused and in the purchased condition and must be accompanied by Seller’s RMA number. To make a non-warranty return, contact Seller for a RMA number. Refunds or credits will only be issued upon receipt and inspection of the product.
. Except for claims of breach of Seller’s limited warranty, Buyer will defend, indemnify and hold Seller harmless from, including paying the cost of defense of, any claims by any person (including, but not limited to, third parties, Buyer’s customers, persons further down the supply chain, end users, and persons affected by use of the goods supplied by Seller), which claims relate or depend in any way on the sale, resale, distribution, nature, suitability, use, or function of goods or services offered for sale or sold by Seller to Buyer.
Any lawsuit against Seller relating in any way to these Terms or a product or service sold, or offered, by Seller to Buyer, must be commenced within one year from the earlier of the accrual of the claim, or the delivery of the product or service giving rise to the claim. The rights and liabilities of the parties arising out of or relating to any sale to Buyer or these Terms are governed by the laws of the state of Washington without application of its conflict or choice of law rules (and excluding the United Nations Convention on the International Sale of Goods). The parties submit and consent to the personal jurisdiction of Washington state and federal courts in connection with any dispute in any way arising out of or related to these Terms or the sale of goods or services by Seller to Buyer, and venue in any such lawsuit between the parties will lie exclusively in state or federal courts in Washington. The prevailing party in such litigation will be entitled to recover all reasonable attorneys’ and expert fees and other litigation expenses (in addition to statutory “cost” of litigation), including all such fees and expenses incurred in connection with any trial, appeal, or petition for review.
Seller may change these Terms by notice to Buyer at any time or by publishing changes. The latest version of these Terms may be obtained by emailing Seller at sales@kobebearing.com. Unless otherwise indicated by Seller, any change to these Terms will apply to the overdue balances on Buyer’s account and to new transactions. If Buyer notifies Seller in writing that Buyer does not accept the changes, Buyer’s account may be closed and Buyer must pay any outstanding balance. If Buyer orders additional goods after notice or publication of changes to these Terms, Buyer will be deemed to accept all changes to the Terms.
THIS IS THE ENTIRE STATEMENT OF TERMS AND CONDITIONS BETWEEN THE PARTIES. IT SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS TERMS, AGREEMENTS, UNDERSTANDINGS, OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER HEREOF.
