Terms and Conditions of Sale
CONTROLLING TERMS: The terms set forth herein (the “Terms”) may differ from or be in addition to those in Buyer’s offer, purchase order, terms and conditions or other document. ANY SUCH TERMS THAT ADD TO, VARY FROM, OR CONFLICT WITH THESE TERMS HEREIN ARE DEEMED TO BE MATERIAL ALTERATIONS, ARE HEREBY REJECTED, AND ANY ACCEPTANCE OF AN ORDER OR OTHER OFFER TO PURCHASE IS EXPRESSLY CONDITIONED UPON BUYER’S AGREEMENT TO THE TERMS SET FORTH HEREIN. Any conduct by Buyer that recognizes the existence of a contract pertaining to the subject matter herein shall constitute Buyer’s agreement that these Terms control the sale and delivery of goods and/or services between YKK (U.S.A.) Inc. (“YKK”) and Buyer and may hereafter be modified only by written instrument executed by the authorized representatives of both parties. These terms shall apply whether or not they are enclosed or supplied with the goods and/or services to be sold and delivered hereunder, and may be found at www.ykk-usa.com.
Inconsistent Terms: Typed terms govern over printed terms; handwritten terms govern over typed terms; and specifications govern over samples or drawings.
Orders: No order submitted by Buyer will be deemed accepted by YKK unless and until confirmed in writing by YKK. Buyer will be responsible for ensuring the accuracy of the terms of the order. YKK reserves the right to correct any typographical or clerical errors that are present in prices, specifications, quotations, acknowledgments or other documents or information issued by YKK without any liability on the part of YKK.
Changes and modifications: Any changes in specifications, terms, delivery or any other matter requested by Buyer will be in writing and must be approved in writing by YKK. Any changes affecting goods already in progress and/or produced will be subject to additional charges to the Buyer. Except when YKK agrees to manufacture goods to Buyer’s design or specifications, YKK reserves the right to make alteration(s) or modification(s) in the design and specifications of its goods.
CANCELLATION: If Buyer cancels all or part of this order, Buyer shall pay reasonable cancellation charges, which shall include, but not be limited to: (a) expenses already incurred by YKK; (b) the value of finished goods, work-in-process and raw materials procured to fulfill the order (c) actual liabilities arising from any financial commitment by YKK to the order involved; (d) properly allowable indirect charges; and (e) a reasonable profit. Any goods completed on or prior to the acceptance of such cancellation by YKK shall be accepted and paid for in full by Buyer.
Price: Prices published or quoted by YKK are subject to change without notice. Buyer shall pay price in effect at time of shipment. All prices are stated in United States Dollars, FOB YKK plant. Prices do not include federal, state, city, or other government excise, sales, use, occupational, gross receipts or like taxes now in force or enacted in the future and, because of this, are subject to an increase by the amount of any such tax. All such taxes and other governmental charges will be paid by Buyer unless Buyer furnishes YKK with an exemption certificate acceptable to taxing authorities on or before the time payment is due.
PAYMENT: Full payment is due based on the terms indicated on the invoice. Past due balances shall accrue interest at 1½% per month, or at the maximum legal rate, whichever is lower. Pro rata payments are due as shipments are made and invoiced. If Buyer delays shipment, goods will be held and stored at the risk and expense of the Buyer.
CREDIT: YKK may extend credit to Buyer and in such event Buyer shall complete a credit application and agreement. When requested, Buyer will submit to YKK current financial documents. If, at its sole discretion, YKK determines financial or other conditions of Buyer are unsatisfactory, YKK may suspend production and shipment and require full or partial payment in advance.
TRANSPORTATION: YKK will select the method of transportation. Any carrier selected shall not be deemed the agent of YKK, and YKK will not assume any liability for any shipment. Costs of transportation will be the obligation of Buyer unless otherwise agreed in writing by YKK. Carriers are responsible for goods lost or damaged in transit and Buyer must immediately notify the carrier in writing of such loss or damage. The price for goods includes the cost of packing for customary domestic air and/or motor freight transportation to the point of delivery. Any special packing, boxing, crating, or cartage required by Buyer will be at Buyer’s expense.
DELIVERY: Delivery shall be deemed made FOB YKK plant. If no shipping date is specified then shipment will be made as determined by YKK. Delivery may be made in advance of any scheduled delivery date. Buyer assumes risk of loss upon delivery of goods to a common carrier. Because of many factors beyond the control of YKK, scheduled shipping dates cannot be guaranteed. Buyer waives any claim against YKK for penalties or damages, direct or consequential, for delayed shipments. Delay in delivery of partial quantities of an order will not relieve Buyer of the obligation to accept remaining deliveries. All shipments with a 5% variance over or under on the actual amount ordered shall be deemed completed. YKK shipping records shall be conclusive as to the quantities shipped unless it receives Buyer’s written claim of shortage within five (5) days from date of receipt of shipment.
TITLE: The title to goods will pass to Buyer upon payment in full of the purchase price. Until such time, YKK has a security interest in the goods and all proceeds from any sale of the goods. Buyer agrees to complete and sign any documents required to finalize or perfect this security interest. Title to all setups, fixtures, tools and equipment required for manufacture of goods, regardless of source, is and will remain the property of YKK.
INSPECTION AND RETURN: If Buyer does not inspect and accept goods before shipment, Buyer shall inspect goods within a reasonable time, not to exceed ten (10) days, after receipt. No goods may be returned for credit without prior written authorization from YKK and only upon the conditions specified in any such authorization. Unless otherwise agreed in writing, in no event will returns be accepted unless Buyer agrees to pay for: (a) all deterioration that has occurred during Buyer’s possession; (b) all freight, insurance, and transportation charges; (c) a reasonable charge for clerical and other handling costs; and (d) any other cost or expense incurred by YKK in the processing of the order or its return. YKK will determine the extent of deterioration that has occurred. No returns will be accepted after sixty (60) days from Buyer’s receipt of shipment. Buyer assumes all risk for loss or damage on any return.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY: YKK warrants goods will be free from defects in materials and workmanship. YKK MAKES NO OTHER AND EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. YKK shall not be liable for loss of use, or any direct, indirect, incidental, consequential, special, punitive, exemplary or other damages. The sole obligation of YKK shall be to, at its sole discretion, replace defective goods or credit Buyer with the purchase price. In no event shall the liability of YKK exceed the purchase price of the goods. Buyer acknowledges that product can be affected by time, temperature, and moisture or other even more corrosive elements within the environment and therefore, depending upon storage conditions, has a finite shelf life. Claims for defective goods must be made within thirty (30) days from date of delivery. YKK must provide prior written authorization for the return or disposition of any defective goods. YKK reserves the right to designate, at its sole cost and expense, the return, disposal or other disposition of all or a portion of any defective goods.
INFRINGEMENT INDEMNITY: Buyer, at its sole expense, shall defend, indemnify and hold YKK harmless from and against all claims, liability, loss, damage and expense resulting from any actual or claimed patent, trademark, copyright or other proprietary rights infringement for any custom made goods designed or specified by Buyer. This obligation shall survive acceptance and payment of any such materials or products by Buyer.
CONFIDENTIALITY: Buyer will not, without first obtaining YKK’s written consent: (a) disseminate the fact that YKK has furnished or has contracted to furnish to Buyer the goods herein; or (b) except as is necessary for performance of this transaction, disclose any of the details connected with this transaction to third parties. Buyer will not use YKK’s name in any way, including without limitation, a general or sample listing of Buyer’s suppliers, without YKK’s prior written consent. Any violation of this paragraph will be deemed a material breach. The obligations under this paragraph will survive cancellation, termination, or completion of this transaction.
INTELLECTUAL PROPERTY: The term “Intellectual Property” includes, without limitation, all of the following: (i) inventions, discoveries, patents, patent applications and all related continuations, divisional, reissue, utility model, design and process patents, applications and registrations thereof, certificates of invention; (ii) works, copyrights, registrations and application for registration thereof; (iii) computer software programs, data and documentation; (iv) trade secrets, confidential information, know-how, design and manufacturing processes, equipment, tooling, and techniques, designs, drawings, prototypes, enhancements, improvements, work-in progress, research and development information; and (v) all other proprietary rights relating to the foregoing. Buyer understands and agrees that YKK and/or its affiliates own all Intellectual Property rights with respect to all products and equipment supplied or that YKK otherwise discloses to Buyer pursuant to this order, including zippers, slide fasteners, hook fasteners and loop fasteners, injection-molded products, die cast products, buttons, snaps, hook & eye, rivets, burrs, eyelet/washers, components, systems, and/or other fastening products, tools and/or machinery which are the subject of this order. Buyer shall not authorize or allow any supplier or agent of Buyer to use any Intellectual Property without YKK’s prior written consent. No rights in any Intellectual Property are licensed or transferred from YKK and/or its affiliates to Buyer. Nothing in this order or any sale or purchase agreement between YKK and Buyer will be deemed to grant Buyer any license or any other rights in YKK and/or its affiliates’ Intellectual Property.
EXCUSE OF PERFORMANCE: Either party may delay performance of obligations, except the payment of money, because of accident, fire, riot, earthquake, flood, strike, terrorism, governmental regulation, unavailability of transportation or manufacturing material or other similar causes beyond its control. Notification of such delay shall be sent to the other party in writing as soon as practicable. Obligations shall resume when the event causing the suspension of performance ceases.
COMPLIANCE WITH LAWS: Buyer will comply with all applicable federal, state, and local laws, and rules and regulations issued pursuant thereto, and will indemnify and hold YKK harmless against any loss, liability or damages incurred because of Buyer’s violation of this obligation.
Anticorruption Laws: Buyer warrants and represents that neither Buyer nor any of its subsidiaries nor, to the Buyer’s knowledge, any other person associated with or acting on behalf of the Buyer or any of its subsidiaries, including, without limitation, any director, officer, agent, or employee of the Buyer or any of its subsidiaries has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity or to influence official action; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee; (iii) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder; and the Buyer has instituted and maintains policies and procedures designed to ensure compliance therewith.
DISPUTE RESOLUTION: Neither party will institute a proceeding in any court or administrative agency to resolve a dispute between the parties, arising out of, or resulting in any way from this order, before that party has sought to resolve the dispute through direct negotiation with the other party. If the dispute is not resolved within four (4) weeks after a demand for direct negotiation, the parties will attempt to resolve the dispute through mediation. If any dispute is not settled by mediation within ninety (90) days, either party may initiate litigation.
GOVERNING LAW: This contract shall be interpreted under the laws of the State of Georgia. In the event of any dispute not resolved by negotiation or mediation, jurisdiction and venue shall be in Cobb County, Georgia, or as appropriate, the United States District Court for the Northern District of Georgia, Atlanta, Georgia. The party prevailing in any such dispute shall be entitled to recover actual attorneys’ fees and costs.
WAIVER: The failure of either Party to insist upon or enforce any provisions of this contract shall not be deemed a waiver of such term or provision unless the waiver is in writing signed by the waiving party.
GENERAL: This contract shall be binding on the parties hereto and their respective transferees, assigns and successors in interest. Any provision of these Terms declared invalid or otherwise unenforceable, in whole or in part, by a court of competent jurisdiction, shall not affect the validity or enforceability of any remaining provision or any otherwise valid portion of the provision declared invalid. If any of these Terms conflict with any terms and conditions of any other agreement between YKK and Buyer, these Terms shall control.