Customer Terms And Conditions
These Standard Terms and Conditions for Customers (this "Agreement"), together with any revisions and additional terms and conditions which may be agreed to in writing by Seller, constitute the entire agreement between Buyer (Customer) and Seller (Nook). All orders are subject to the approval by Seller at its offices in Cleveland, Ohio. No course of prior dealings between the parties or usage in the trade shall be relevant to supplement or explain any term used in this Agreement. No waiver or alteration of the terms herein or additional terms and conditions shall be binding upon Seller unless agreed to in writing and signed by Seller.
All prices are ExWorks shipping point unless otherwise agreed to in writing by Buyer and Seller. Prices and lead times quoted are expressly limited to, and expressly made conditional on, Buyer’s acceptance of these Standard Terms and Conditions for Customers. If after prices and lead times have been quoted Buyer advances new terms that differ from those set forth in this Agreement and that cause or may cause increases in costs of labor or materials to Seller, then the prices and lead times quoted are subject to change. Additionally, all prices are based on the quantities quoted and any change in the quantities may also affect the price. Seller reserves the right, in its sole discretion, to bill Buyer, and Buyer agrees to pay, prices prevailing at the time of shipment. No discount will be allowed unless specifically agreed to in writing by Seller. Until the purchase price and all other sums due pursuant hereto are paid in full, Buyer grants to Seller and Seller retains a security in the products (sometimes referred to as the "Goods") and in all proceeds of said Goods. Buyer shall execute UCC-1 financing statement(s) upon request by Seller and irrevocably authorizes Seller to execute and file the same.
Invoices for Goods and services shall be due and payable net thirty (30) days from shipment. Buyer agrees to pay a delinquency charge of 1.5% per month, or if such rate shall exceed the maximum rate allowed by applicable law, then a delinquency charge calculated at such maximum rate on the outstanding balances not paid when due, from the date such balances were due until payment with respect thereof is made in full.
ACCEPTANCE AND TRANSPORTATION
Upon Buyer's receipt of shipment, Buyer shall immediately inspect the Goods. Unless Buyer provides Seller with written notice describing with particularity the nature of any defects in the Goods or the amount of any shortage claimed within thirty (30) calendar days after receipt of shipment, the Goods shall be deemed accepted by Buyer. In the event that Buyer does not specify a method of shipment, Seller may use its own discretion in determining the method of shipment. All transportation expenses are the responsibility of Buyer.
TITLE AND RISK OF LOSS
Title to Goods sold and risk of loss of such Goods shall pass to Buyer at the ExWorks shipping point.
SELLER WARRANTS GOODS MANUFACTURED BY IT WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR ONE (1) YEAR FOLLOWING THE DATE OF SHIPMENT. IF ANY OF THE GOODS ARE FOUND BY SELLER TO BE DEFECTIVE, SUCH GOODS WILL, AT SELLER'S OPTION, BE REPLACED OR REPAIRED AT SELLER'S COST. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES. SELLER IS NOT RESPONSIBLE FOR LABOR OR OTHER COSTS OR EXPENSES OF REPAIRING OR REPLACING ANY DEFECTIVE GOODS THAT ARE SOLD BUT NOT MANUFACTURED BY SELLER. THE FOREGOING WARRANTY DOES NOT APPLY TO ANY GOODS INSTALLATION, MODIFICATION (INCLUDING BUT NOT LIMITED TO USE OF UNAUTHORIZED PARTS OR ATTACHMENTS), ADJUSTMENT, OR REPAIR PERFORMED BY ANYONE OTHER THAN SELLER OR ONE OF SELLER'S AUTHORIZED AGENTS.
ANY CLAIM BY BUYER WITH REFERENCE TO THE GOODS SOLD HEREUNDER SHALL BE DEEMED WAIVED BY BUYER UNLESS SUBMITTED IN WRITING TO SELLER WITHIN THE EARLIER OF (I) THIRTY (30) DAYS FOLLOWING THE DATE BUYER DISCOVERED OR BY REASONABLE INSPECTION SHOULD HAVE DISCOVERED ANY CLAIMED BREACH OF THE FOREGOING WARRANTY, OR (II) TWELVE (12) MONTHS FOLLOWING THE DATE OF SHIPMENT. ANY CAUSE OF ACTION FOR BREACH OF THE FOREGOING WARRANTY SHALL BE BROUGHT WITHIN ONE YEAR FROM THE DATE THE ALLEGED BREACH WAS DISCOVERED OR SHOULD HAVE BEEN DISCOVERED, WHICHEVER OCCURS FIRST.
LIMITATION OF LIABILITY
SELLER'S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY) FOR ITS GOODS SHALL BE LIMITED TO REPAIRING OR REPLACING PARTS FOUND BY SELLER TO BE DEFECTIVE. AT SELLER'S REQUEST, BUYER WILL SEND, AT BUYER'S EXPENSE, ANY ALLEGEDLY DEFECTIVE PARTS TO THE PLANT OF SELLER WHICH MANUFACTURED THEM.
DISCLAIMER OF CONSEQUENTIAL DAMAGES
IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, BREACH OF ANY OBLIGATION OR WARRANTY IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH. INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR PURPOSES HEREOF SHALL INCLUDE WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF INJURY TO ANY PERSON, OR LOSS SUSTAINED AS THE RESULT OF WORK STOPPAGE. BUYER SHALL INDEMNIFY SELLER AGAINST ALL LIABILITY, COST OR EXPENSE WHICH MAY BE SUSTAINED BY SELLER ON ACCOUNT OF ANY SUCH LOSS, DAMAGE OR INJURY.
Unless otherwise specifically provided herein, the price for the Goods purchased does not include sales, use, excise or similar taxes, whether federal, state, or local. Buyer shall be responsible for all such applicable taxes levied or assessable on any Goods after title passes to Buyer at the ExWorks shipping point. Buyer will provide Seller with any and all tax exemption certificates, acceptable to the appropriate taxing authorities, where applicable.
Unless expressly specified to the contrary, all shipping dates are based upon current availability of materials, present production schedules, and prompt receipt of all necessary information. Seller will not be liable for any damage, loss, fault, expense or freight charges arising out of delays in shipment, regardless of the causes for the delays.
All orders and shipments shall at all times be subject to the approval of Seller's Credit Department. Seller reserves the right to decline any order or decline to make any shipment whenever, for any reason, there is, in the sole judgment of Seller, any doubt as to Buyer's financial responsibility and Seller shall not in such event be liable for breach or nonperformance of contract in whole or in part.
Goods may not be returned for credit without Seller's prior consent. All transportation charges for returned Goods are the sole responsibility of Buyer. Returned Goods are subject to Seller's inspection and will not be considered to have been accepted for return of credit unless they are, (i) in Seller's sole discretion, in "like new" condition, and (ii) returned to Seller within sixty (60) days from the date of shipment. Buyer hereby agrees that it will not debit Seller's account for any return, regardless of the reason for such return, unless agreed to by Seller. Seller's return policy, a copy of which is available at RMA/Return Goods Information, is hereby incorporated to be an integral part of this Agreement as if fully stated herein.
Seller is not responsible for any claims, liabilities, costs, damages, or expenses (including, but not limited to, expenses for reworks, repairs, or replacements) Buyer sustains or may sustain by reason of any recalls or retrofits of any of Buyer's goods or products that contain components that are manufactured by Seller, if such recalls or retrofits are not attributable to any defect in the design, workmanship, or materials in the Goods or if such recalls or retrofits are not attributable to a breach of any of Seller’s obligations or warranties under this Agreement.
TERMINATION, CANCELLATION, AND CHANGES
After Seller's acceptance of Buyer's orders, such accepted orders cannot be terminated, cancelled or modified, and shipment cannot be deferred, except with Seller's written consent and subject to conditions then agreed upon. In the event Seller consents to any such termination, cancellation, modification, or deferred shipment, Buyer shall indemnify Seller against liability and expense incurred and commitments made by Seller, and shall compensate Seller for profit on work in process and for the contract value of products or parts that have been completed and are ready for shipment.
PATENTS AND COPYRIGHT
In no event shall Seller be liable for damages arising from infringement or alleged infringement of patents or copyrights. In the event that Buyer should be enjoined in such suit or proceeding from using any of the Goods purchased pursuant to this Agreement, Seller, at its option, shall promptly either (i) secure termination of the injunction and procure for Buyer the right of use of such Goods without any obligation or liability, or (ii) replace said Goods with non-infringing materials or modify the same to become non-infringing, all at Seller's expense and to Buyer's reasonable satisfaction, or (iii) remove said Goods at Seller's expense and refund the purchase price of the infringing Goods to Buyer. THIS SHALL BE BUYER'S EXCLUSIVE REMEDY AGAINST SELLER WITH RESPECT TO PATENT OR COPYRIGHT INFRINGEMENT. The sale of Goods hereunder does not convey any license or copyright under any proprietary or patent rights of any manufacturer. Seller shall not have any liability if the alleged infringement is based upon the use or application of the Goods in combination with other goods and Buyer shall indemnify Seller therefor. Seller disclaims all other liability for infringement of intellectual property rights and further disclaims any liability for incidental, consequential, or exemplary damages.
No agent, salesman or other party is authorized to bind Seller by any agreement, warranty, statement, promise or understanding not herein expressed.
The sale of Goods pursuant to this Agreement shall be governed by the laws of the State of Ohio.
Seller may provide notice to Buyer by email, regular mail, certified mail, or commercial courier to the address Buyer provides to Seller.
The remedies herein shall be cumulative and additional to any other or further remedies provided in law or at equity which the parties may possess. In addition to the rights and remedies conferred upon Seller by law, Seller shall not be required to proceed with the performance of any order or contract if Buyer is in default in the performance of any order or contract with Seller.
Any clerical errors are subject to correction.
No delay or omission by Seller in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy, and no such delay or omission shall constitute a bar to or waiver of any such right or remedy on any future occasion.
The waiver, illegality, invalidity or unenforceability of any provision appearing in this Agreement shall not affect the validity of the Agreement as a whole or the validity of any other provisions herein.
This Agreement shall be binding upon and shall inure to the benefit of the permitted successors and assigns of Buyer and Seller. Buyer may not assign or transfer this Agreement, in whole or in part, except upon the prior written consent of Seller.
Additional International Customer Terms And Conditions
PAYMENT TERMS OPTIONS
Cash In Advance (CIA)
- This is the payment term for new customers.
- Please let you Nook representative know if you require a pro-forma invoice prior to submitting your PO.
- Submit your complete purchase order. We will send you a deposit invoice. Please wire the funds per the banking information on the deposit invoice to complete your purchase. Credit card payment also acceptable.
- Production lead time begins when payment has been received.
Visa, Mastercard, or American Express (Credit Card)
- This is the payment term for new customers.
- At the time of order, we will reserve the funds for the full amount of the order.
- We will bill the card for the full amount of the order at the time of shipment.
NET30 may be available
- Eligibility for open terms is at the discretion of Nook’s Finance department.
- The NET terms application process can take 4-6 weeks. The quoted lead time begins when the application has been approved. Please allow for this extended lead time when planning your purchase.
- There is a $500 application fee for NET terms for orders under USD$10,000.
- Standard open accounts are NET30.
Shipping is not included in our product pricing. We can provide a shipping quote upon request. Shipping requirements must be included on your purchase order. Select one of the following shipping options.
- Incoterm - EXWORKS: Nook makes the product available at our dock and the customer is responsible for shipping. Please inform us of your customs broker and the name and contact details of the entity that will be picking up the shipment from Nook.
- Incoterm – DAP: Delivered at Place. Nook arranges shipping to the agreed-upon customer location. We need to know your customs broker for the purposes of customs clearance at delivery. The customer (consignee) is responsible for taxes, duties, and customs clearance at the receiving end of the shipment. Note: DAP is not available everywhere. In these cases CPT is our preferred INCOTERM.
Phytosanitary crating: Please inform us if your country requires phytosanitary crating. We will include a line for phytosanitary crating whenever we believe it is applicable. We do not offer a phytosanitary crating certificate; the crate itself is stamped. This stamp is proof of phytosanitization.
All international orders include a standard Certificate of Conformance and the paperwork for customs clearance. Please inform your Nook representative at the time of quote if you require additional certificates. Many certificates cannot be created after the order has shipped. Other certificates that may be available include:
- First Article Inspection
- Material Certificate (MTR)
A formal written purchase order is required. Verbal and informal orders are not accepted.
The following items must be included on the PO:
- Correct pricing in USD
- Accurate payment terms (one of the following):
- Cash in advance
- Credit Card
- Complete shipping address
- Complete billing address
- Customs broker contact information
- Complete shipping information