Terms & Conditions

1.    LIMITS OF TERMS AND CONDITIONS.  The terms and conditions set forth herein, together with those appearing on order confirmation or acknowledgment prepared, or issued by, any Nichicon-related entity, subsidiary, or affiliate, as the case may be in this transaction, (“Nichicon”) shall constitute the entire agreement between Nichicon and the Buyer as to the products that are the subject of this transaction (the “Products”).  No additional, inconsistent, or contradictory items in Buyer’s purchase order or any other document are acceptable unless agreed to in writing by an authorized officer of Nichicon, and Notice of Objection is hereby given and Nichicon hereby rejects, any such additional, inconsistent or contradictory terms or changes.  NONE OF THE TERMS AND CONDITIONS SET FORTH IN BUYER’S PURCHASE ORDER OR OTHER DOCUMENT WHICH ARE ADDITIONAL TO, INCONSISTENT, OR IN CONFLICT WITH THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE BINDING UPON NICHICON, AND NICHICON HEREBY REJECTS SUCH ADDITIONAL, INCONSISTENT, OR CONTRADICTORY TERMS AND CONDITIONS.  If the terms and conditions set forth herein, are deemed an acceptance of a prior offer by Buyer, such acceptance is expressly limited and conditional on assent to the terms contained in the terms and conditions set forth herein.

2.    DELIVERY.  Buyer understands that any delivery schedule is estimated and is presented in good faith by Nichicon.  However, Nichicon can give no firm assurance that such estimated schedule will be met.  Therefore, Nichicon reserves the right to delay, postpone or terminate deliveries so scheduled, in its discretion, and Nichicon shall not be liable to Buyer or any other person or organization for any failure to deliver for any reason all or any portion of the Products scheduled and shall, without limiting the foregoing, not be liable for any direct, indirect, incidental or consequential damages resulting from any failure to meet such schedule.  Notwithstanding any provision contained in these terms and conditions to the contrary, Nichicon shall not be responsible or liable to Buyer for any loss or damage for any reason whatsoever resulting from Nichicon’s delayed performance in shipment or delivery of the Products specified by the Buyer in its purchase order, including loss of income and/or profits, or incidental, special or consequential damages.  Nichicon shall not be responsible or liable for any delay or failure to perform any obligations under these terms and conditions due to occurrences or circumstances beyond Nichicon’s control, including but not limited to labor difficulties; fires; casualties; accidents; acts of nature; acts of terrorism; transportation difficulties; inability to obtain Products, materials, components or qualified labor; or government regulation or action.  Upon the occurrence of any of the foregoing, at Nichicon’s option Nichicon shall be excused from performance hereunder or the Nichicon’s performance shall be correspondingly extended for the length of such delay or inability.

3.    DELIVERY TERMS.  All sales are made F.O.B. Nichicon’s facility.  All sales are final upon shipment.  In the absence of written agreement to the contrary, the means of shipment will be at the discretion of Nichicon.  Buyer will pay all costs of shipment.  Risk of loss shall pass to Buyer on delivery to the carrier at Nichicon’s facility, notwithstanding any provisions for payment of freight or insurance by Nichicon or the form of the shipping documents.  Risk of loss of Products sent to Nichicon for adjustments shall remain with Buyer until such is received by Nichicon.

4.    INSPECTION.  Buyer shall inspect and test the Products immediately upon receipt thereof.  All claims for any alleged defect in the Products or in Nichicon’s performance which is capable of discovery upon reasonable inspection and testing, including, but not limited to, shortage in the quantity of Products delivered, shall be fully set forth in writing and delivered by Buyer to Nichicon within thirty (30) days of delivery of the Products to the Buyer.  All claims which are not capable of discovery upon reasonable inspection and testing shall be delivered to Nichicon in writing within thirty (30) days after discovery, but in no event more than one year after shipment by Nichicon of the Product.  Failure to provide written notice of any such claim by the Buyer within the time periods set forth in this paragraph shall constitute a waiver of any such claims and shall be an absolute defense to liability of Nichicon in connection therewith.  

5.    PRICE AND PAYMENT TERMS.   Payment terms are net thirty (30) days after date of invoice, unless otherwise indicated on the face hereof.  Time of payment is of the essence of these terms and conditions.  Unless otherwise specified herein, all prices are exclusive of inland freight, insurance and other costs and expenses relating to the shipment of the Products from the F.O.B. point to the Buyer’s plant.  In addition, unless separately stated in any shipping documents by Nichicon, all prices by Nichicon are exclusive of all federal, state, municipal or foreign taxes of any kind, and Nichicon will not report, collect or pay any tax which may be imposed on Buyer, and Buyer shall report and pay all taxes so imposed and shall hold Nichicon harmless therefrom.  Payment terms are subject to change at the sole discretion of Nichicon.  Nichicon reserves the right to charge interest at the rate of one and one-half (1.5%) percent per month (but no more than the maximum percentage permitted by law) on all balances not paid by Buyer within the designated net terms.  Nichicon reserves the right at any time to revoke any credit extended to Buyer because of Buyer’s failure to pay for any Products when due or for any other reason deemed good and sufficient by Nichicon.  Nichicon shall make no sale or shipment of any Products to Buyer on open account, or in any manner, if at any time the financial responsibility of the Buyer becomes impaired or unsatisfactory to Nichicon, and the Buyer does not provide full security to Nichicon, or if at the time of such sale or shipment, Buyer is delinquent in the payment of any account to Nichicon.  In the event Buyer shall be in default under any of the terms and conditions hereof, or becomes insolvent or proceedings are instituted to declare Buyer bankrupt, or a receiver is appointed for Buyer in any court, Nichicon, may at its option, terminate these terms and conditions and upon such termination by Nichicon, any and all claims or demands against Buyer held by Nichicon shall immediately become due and payable.  Buyer shall reimburse to Nichicon all attorneys fees and expenses incurred by Nichicon in enforcing the provisions of these terms and conditions.

6.    INDEMNIFICATION.   Buyer shall indemnify, defend and hold Nichicon harmless against any claims, expenses, damages, costs or losses resulting from any suit or proceeding brought for infringement of patents or trademarks, misappropriation of trade secrets or other proprietary information, unfair competition, or any claim (including but not limited to, commercial, personal injury or product liability claims) relating to alleged defects in the design, instructions or specifications of the Product arising from compliance with Buyer’s designs or specifications or instructions.

       Nichicon shall not be liable for any costs or damages incurred by Buyer as a result of any suit or proceeding brought against Buyer, and Buyer will indemnify, defend and hold Nichicon harmless from any expenses, damages, costs or losses resulting from any suit or proceeding brought against Nichicon, either severally or jointly with Buyer, so far as such suit or proceeding is based on any claim that (a) use of any Product or any part thereof furnished hereunder in combination with products not supplied by Nichicon or (b) a manufacturing or other process utilizing any Product, or any part thereof, furnished hereunder, constitutes either direct or contributory infringement of any patent of the United States or any other country or any trade secret or proprietary information.

7.    SALE CONVEYS NO LICENSE.   The Products are offered for sale and sold by Nichicon subject to the condition that such sale does not convey any license (except a non-exclusive license to use and sell the Products), expressly or by implication, estoppel or otherwise.  Nichicon expressly reserves all its rights to make, use and sell such Products.

8.    WARRANTIES AND LIMITATIONS.   Subject to the provisions set forth below, Nichicon warrants that the Products to be delivered hereunder are free from defects in material and workmanship, meet Nichicon’s performance specifications, and substantially conform with any specifications of Buyer which Nichicon agrees to in writing.  This warranty is limited to a one-year period commencing with the date of shipment of any such Product.  Minor deviations from specifications, which do not affect performance of the Products covered thereby, are excluded from this warranty.  Nichicon will not be liable under this warranty unless (i) Nichicon is properly notified in writing by Buyer of any defects within the time frames set forth in Paragraph 4 above; (ii) such Product is returned to Nichicon transportation charges prepaid by Buyer, (iii) such Product is received by Nichicon not more than 10 days after the last day of the one year warranty period; and (iv) Nichicon’s examination of such Product shall disclose to Nichicon’s reasonable satisfaction that such defects or failures have not been caused by misuse, neglect, improper installation, repair, alteration or accident. THE FOREGOING CONSTITUTES NICHICON’S ENTIRE WARRANTY, EXPRESS, IMPLIED AND/OR STATUTORY (EXCEPT AS TO TITLE), AND STATES THE FULL EXTENT OF NICHICON’S LIABILITY TO BUYER OR TO ANY OTHER PARTY FOR ANY BREACH OF SUCH WARRANTY AND FOR DAMAGES, WHETHER DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, RESULTING FROM ANY SUCH BREACH.  NICHICON’S WARRANTY HEREIN IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES OF NICHICON, THE MANUFACTURER OF THE PRODUCTS, AND ANY OTHER ENTITY INVOLVED IN THE MANUFACTURE, SALE, OR SERVICING OF THE PRODUCTS (OR ANY PORTION THEREOF) AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES AND RELATED COMPANIES (HEREINAFTER COLLECTIVELY REFERRED TO AS THE “MANUFACTURING AND SELLING COMPANIES”), WHETHER EXPRESS, IMPLIED OR STATUTORY, OR OTHERWISE CREATED UNDER APPLICABLE LAW INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE, ALL OF WHICH ARE HEREBY DISCLAIMED.  IN NO EVENT SHALL NICHICON AND/OR THE MANUFACTURING AND SELLING COMPANIES BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, WHETHER OR NOT CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF NICHICON AND/OR THE MANUFACTURING AND SELLING COMPANIES, UNLESS SPECIFICALLY PROVIDED HEREIN.  IN ADDITION, NICHICON AND THE MANUFACTURING AND SELLING COMPANIES SHALL NOT BE LIABLE UNDER THIS WARRANTY WITH REGARD TO ANY (A) PRODUCT OR PORTIONS THEREOF WHICH HAVE BEEN SUBJECTED TO ABUSE, MISUSE, IMPROPER INSTALLATION, MAINTENANCE OR OPERATION, ELECTRICAL FAILURE OR ABNORMAL CONDITIONS; (B)  PRODUCTS WHICH HAVE BEEN TAMPERED WITH, ALTERED, MODIFIED, REPAIRED OR REWORKED BY ANYONE NOT APPROVED BY NICHICON; (C) PROBLEMS OR DEFECTS ARISING, IN WHOLE OR IN PART, FROM ANY SOLDERING, REFLOW, OR OTHER HEATING PROCESS TO WHICH THE BUYER MAY SUBJECT THE PRODUCTS; AND (D) ANY FAILURE BY BUYER TO COMPLY WITH THE INSTRUCTIONS AS TO THE PRODUCTS CONTAINED IN NICHICON’S TECHNICAL NOTES, CATALOG OR OTHER LITERATURE GENERALLY MADE AVAILABLE.  BUYER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS WARRANTY SHALL BE, AT NICHICON’S DISCRETION, THE REPLACEMENT OR REPAIR OF ANY DEFECTIVE PRODUCTS OR PARTS THEREOF, OR REFUND OF ANY AMOUNTS PAID.

9.    RETURNS AND ADJUSTMENTS.  No Products may be returned for adjustment without the prior written approval of Nichicon.  Returns must be received within thirty (30) days of the issue date of the RMA or a new RMA must be obtained from Nichicon.  No credit allowances or replacements will be effected until any alleged defects are established to Nichicon’s reasonable satisfaction by tests and inspections to be performed by Nichicon at any reasonable time and place it designates.  As more fully set forth in Paragraph 8 above, in no event shall any Products be returned more than 10 days after the expiration of the one-year warranty period.

10.    CANCELLATION.  Buyer acknowledges and agrees that the Products are specially manufactured for Buyer, and cannot be adapted for use by another purchaser.  Consequently, once manufacture is begun, Nichicon would be unable to resell the Products at a reasonable price.  If this order is cancelled by Buyer without Nichicon’s written consent, Buyer shall pay Nichicon for work allocated to Buyer’s order at the time of cancellation or work at the applicable unit selling price based on quantity actually received and paid for by Buyer and all costs, direct and indirect for the work in process as well as costs resulting from the cancellation, and a reasonable profit thereon.  The foregoing shall not limit Nichicon’s remedies against Buyer. 

11.    CHOICE OF LAW AND FORUM.  Disputes arising from these Terms will be governed by the law of the jurisdiction of the principal place of business of the Nichicon entity or affiliate accepting the order to which the dispute relates and the courts of that locale will have exclusive jurisdiction and venue, except that Nichicon may, at its option, bring suit for collection in the country where the Buyer that placed the order is located.  The provisions of the United Nations Convention on the International Sales of Goods shall not apply.  Notwithstanding anything to the contrary, if the principal place of business of the Nichicon entity involved in this transaction is the United States, then the law of the State of Illinois, without regard to conflict of law principles, shall apply and Buyer hereby consents to the exclusive personal jurisdiction and venue of the United States District Courts and Illinois State Courts located in Cook County, Illinois.  Buyer hereby waives any objection to such venue and personal jurisdiction.  THE PARTIES MUTUALLY WAIVE ANY RIGHT TO TRIAL BY JURY.  EACH PARTY HEREBY EXPRESSLY WAIVES THE RIGHT TO SUE FOR, DEMAND OR RECOVER, LOST PROFITS OR OTHER SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FOR A BREACH OF OR ANY OTHER ACT OR OMISSION IN CONNECTION WITH OR RELATING TO THESE TERMS AND CONDITIONS OR THE RELATIONSHIP OF THE PARTIES.

12.    SECURITY INTEREST.  Buyer hereby grants to Nichicon and Nichicon hereby retains a continuing purchase money security interest in all of the Products sold and delivered by Nichicon to Buyer, whether presently in the possession of Buyer or hereafter acquired, together with any and all proceeds of sale or other disposition of the Products including, but not limited to, cash, accounts, contract rights and chattel paper.  Buyer shall keep the Products free from any adverse lien, security interest or encumbrance and will not store the Products in any part or use the Products in violation of any statute or ordinance.  In the event Buyer shall be in default under these terms and conditions, Nichicon shall have the remedies of a secured party under the Uniform Commercial Code in force in the state of Buyer’s place of business.  Nichicon may enter the Buyer’s premises and remove the Products.  

13.    CONFIDENTIALITY.  All drawings, designs, specifications, manuals and programs furnished to Buyer by Nichicon shall remain the confidential and proprietary property of Nichicon.  Buyer shall hold such information, except as may be found in the public domain, in strict confidence and not disclose such information to third parties.  Copyright and all materials made available by Nichicon shall remain the property of Nichicon at all times.

14.    MISCELLANEOUS.

         (a)    Any failure by any party hereto to enforce at any time any term or condition under these terms and conditions shall not be construed as a waiver of that party’s right thereafter to enforce each and every term and condition of these terms and conditions.  

         (b)    These terms and conditions shall be binding upon the successors and legal representatives of the parties hereto.

         (c)    The Buyer shall not assign these terms and conditions or any interest or rights thereunder, without the prior written consent of Nichicon.