1. General.
The terms and conditions contained herein, together with any additional or different terms contained in NOARK’s Proposal (“Terms”), if any, submitted to Purchaser (which Proposal shall control over any conflicting terms), constitute the entire agreement (the “Agreement”) between the parties with respect to the order and supersede all prior communications and agreements regarding the order. Acceptance by NOARK of the order, or Purchaser’s acceptance of NOARK’s Proposal, is expressly limited to and conditioned upon Purchaser’s acceptance of these terms and conditions, payment for or acceptance of any performance by NOARK being acceptance. These terms and conditions may not be changed or superseded by any different or additional terms and conditions proposed by Purchaser to which terms NOARK hereby objects. Unless the context otherwise requires, the term “Equipment” as used herein means all of the equipment, parts, and accessories sold.
2. Prices.
(a) Unless otherwise specified in writing, all Proposals expire thirty (30) days from the date thereof.
(b) Prices and other information shown in any NOARK publication (including product catalogs and brochures) are subject to change without notice and to confirmation by specific quotation. Such publications are not offers to sell and are maintained only as a source of general information.
(c) The price does not include any federal, state or local property, license, privilege, sales, use, transportation, excise, gross receipts, disposal, or other like taxes which may now or hereafter be applicable. Purchaser agrees to pay or reimburse any such taxes which NOARK or its suppliers are required to pay or collect. If Purchaser is exempt from the payment of any tax or holds a direct payment permit, Purchaser shall, upon order placement, provide NOARK a copy, acceptable to the relevant governmental authorities of any such certificate or permit.
(d) For products shipped from Noark’s North America-based warehouses, the price includes customs duties and other importation or exportation fees, if any, at the rates in effect on the date of NOARK’s Proposal. Any change after that date in such duties, fees, or rates, shall increase the price by NOARK’s additional cost.
(e) For products shipped from outside of North America, the responsibility for payment of customs duties and other importation or exportation fees will be determined by the shipment terms (Incoterms 2020) listed in the specific quotation issued by Noark.
(f) NOARK may increase Prices, change transportation terms, change payment terms, and/or change the notice provision, by giving Purchaser at least fifteen (15) days prior notice. These changes will be deemed accepted unless Purchaser objects in writing before the effective date of the change. NOARK shall advise Purchaser within fifteen (15) days from receipt of timely written objection from Purchaser whether NOARK shall:
(i) continue to supply the Equipment on terms and conditions in effect prior to the announced change.
(ii) Enter into negotiations with Purchaser; or
(iii) delete affected Equipment from these Terms.
3. Payment.
(a) Unless specified to the contrary in writing by NOARK, payment terms are net cash, payable without offset, in the invoiced currency, 30 days from date of invoice by wire transfer to the account designated by NOARK in the Proposal. Time of payment is of the essence.
(b) If in the judgment of NOARK the financial condition of Purchaser at any time prior to delivery does not justify the terms of payment specified, NOARK may require payment in advance, payment security satisfactory to NOARK, or may delay or terminate the order, whereupon NOARK shall be entitled to receive reasonable cancellation charges. If at the request of Purchaser, delivery is to be delayed, payment shall be due on the date NOARK is prepared to make delivery and may be subject to storage costs by NOARK. Delays in delivery or nonconformities in any installments delivered shall not relieve Purchaser of its obligation to accept and pay for remaining installments.
(c) Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1 1/2% per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus NOARK’s attorneys’ fees and court costs incurred in connection with collection.
4. Minimum Orders.
$250 minimum order. $25 minimum order fee will be added to any orders less than $250. Minimum order quantities also apply. Minimum Order Fee waived if for emergency air shipments.
5. Changes.
(a) Any changes requested by Purchaser affecting the ordered scope of work must be accepted by NOARK and resulting adjustments to affected provisions, including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change.
(b) NOARK may, at its expense, make such changes in the Equipment as it deems necessary, in its sole discretion, to conform the Equipment to the applicable specifications. If Purchaser objects to any such changes, NOARK shall be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection.
6. Delivery.
(a) All Equipment manufactured, assembled or warehoused in the continental United States or Canada is delivered F.O.B. point of shipment. Equipment shipped from outside the continental United States or Canada is delivered FOB NOARK’s factory location unless specified otherwise in the specific quotation. (if not FOB factory, we quote DDP or DDU and charge for transportation, duties etc.). Purchaser shall be responsible for any and all demurrage or detention charges.
(b) If the scheduled delivery of Equipment is delayed by Purchaser or by Force Majeure, NOARK may move the Equipment to storage for the account of and at the risk of Purchaser whereupon it shall be deemed to be delivered.
(c) Shipping and delivery dates are contingent upon Purchaser’s timely approvals and delivery by Purchaser of any documentation required for NOARK’s performance hereunder. Delivery dates are approximate and are dependent upon prompt receipt by Purchaser of all information necessary to proceed with the work without interruption.
(d) Claims for shortages or other errors in delivery must be made in writing to NOARK within ten days of delivery. Equipment may not be returned except with the prior written consent of and subject to terms specified by NOARK. Claims for damage after delivery shall be made directly by Purchaser with the common carrier.
(e) Purchaser shall promptly unload and promptly return all transportation equipment to carrier and in no event later than the carrier’s rules tariff or contracted period, free of detention charges. Carrier or NOARK may collect carrier’s standard detention charge from Purchaser if held beyond carrier’s allowable time. When Equipment is to be shipped by barge, vessels, or rail, an addendum containing additional terms and conditions applicable to such shipment will be made a part of these Terms. Purchaser will take reasonable steps to preserve claims for loss or damage in transit against carrier.
7. Title & Risk of Loss.
Title to Equipment and Risk of Loss will be governed by freight terms (Incoterms 2020) noted in the NOARK quotation.
8. Inspection, Testing and Acceptance.
(a) Any inspection by Purchaser of Equipment on NOARK’s premises shall be scheduled in advance to be performed during normal working hours.
(b) If the order provides for factory acceptance testing, NOARK shall notify Purchaser when NOARK will conduct such testing prior to shipment. Unless Purchaser states specific objections in writing within ten (10) days after completion of factory acceptance testing, completion of the acceptance test constitutes Purchaser’s factory acceptance of the Equipment and its authorization for shipment.
(c) If the order provides for site acceptance testing, testing will be performed by NOARK personnel to verify that the Equipment has arrived at site complete, without physical damage, and in good operating condition. Completion of site acceptance testing constitutes full and final acceptance of the Equipment. If, through no fault of NOARK, acceptance testing is not completed within thirty (30) days after arrival of the Equipment at the site, the site acceptance test shall be deemed completed and the Equipment shall be deemed accepted.
(d) Purchaser shall promptly, and in any event prior to use or commingling, inspect the Product shipments for any damage to packaging, shortage or non-conformance to these Terms. All claims for damage to packaging, shortage or non-conformance which could reasonably be discoverable in the course of such investigation shall be waived unless Purchaser notifies NOARK in accordance with this Section.
9. Warranties and Remedies.
(a) New Component Warranty. NOARK warrants that new Products furnished hereunder will be free from defects in material, workmanship and design for a period of one (1) year or five (5) years as indicated in the table below, from the date of invoice from NOARK or its appointed distributor. Remedies under the above warranties will be limited, at Seller’s option, to the replacement, repair, or issuance of a credit for the purchase price, of the Products involved, and only after the return of such Products pursuant to Seller’s instructions. The foregoing will be the exclusive remedies for any breach of warranty or breach of contract arising therefrom.
Product Name | Product Family | Warranty Period |
Molded Case Circuit Breakers | M1 to M6 Series | Five (5) years |
Miniature Circuit Breakers | B1 Series | Five (5) years |
IEC Motor Controllers and Overload Relays (HD) | Ex9C, Ex9CS, Ex9RD, Ex9RE, Ex9S32 Series | Five (5) years |
Safety Contactors and Relays | Ex9RCA, Ex9CA | Five (5) years |
Pilot Lights, Pushbuttons and Selector Switches | Ex9IL, Ex9PB Series | Five (5) years |
Enclosed Breakers | All | Five (5) years |
Definite Purpose Contactors | Ex9CK, Ex9CKT Series | Five (5) years |
Power Circuit Breakers | A16, A25, A32, A40 Series | One (1) year |
IEC Motor Controllers and Overload Relays (GP) | Ex9CD, Ex9CM, Ex9R, Ex9S25 Series | One (1) year |
Soft Starts | Ex9QR5 Series | One (1) year |
*Any additional products Seller may offer for sale that are not specifically named here
Warranty satisfaction is available only if (a) Seller is provided prompt written notice of the warranty claim and (b) Seller’s examination discloses that any alleged defect has not been caused by misuse; neglect; improper installation, operation, maintenance, repair, alteration or modification by other than Seller; accident; or unusual deterioration or degradation of the Products or parts thereof due to physical environment or electrical or electromagnetic noise environment.
(b) Equipment Warranty.
NOARK warrants that Equipment shall be delivered free of defects in material and workmanship. The Warranty Remedy Period for Equipment (excluding Spare Parts and Refurbished or Repaired Parts) shall end twelve (12) months after installation or eighteen (18) months after date of shipment, whichever first occurs. The Warranty Remedy Period for new spare parts shall end twelve (12) months after date of shipment. The Warranty Remedy Period for refurbished or repaired parts shall end ninety (90) days after date of shipment.
(c) Equipment Remedy.
If a nonconformity to the foregoing warranty is discovered in the Equipment during the applicable Warranty Remedy Period, as specified above, under normal and proper use and provided the Equipment has been properly stored, installed, operated and maintained and written notice of such nonconformity is provided to NOARK promptly after such discovery and within the applicable Warranty Remedy Period, NOARK shall, at its option, either (i) repair or replace the nonconforming portion of the Equipment or (ii) refund the portion of the price applicable to the nonconforming portion of Equipment. If any portion of the Equipment so repaired, replaced or re-performed fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to NOARK promptly after discovery and within the original Warranty Remedy Period applicable to such Equipment or 30 days from completion of such repair, replacement or re-performance, whichever is later, NOARK will repair or replace such nonconforming Equipment. The original Warranty Remedy Period shall not otherwise be extended.
(d) Exceptions.
NOARK shall not be responsible for providing working access to the nonconforming Equipment, including disassembly and re-assembly of non-NOARK supplied equipment, or for providing transportation to or from any repair facility, all of which shall be at Purchaser’s risk and expense. NOARK shall have no obligation hereunder with respect to any Equipment which (i) has been improperly repaired or altered; (ii) has been subjected to misuse, negligence or accident; (iii) has been used in a manner contrary to NOARK’s instructions; (iv) is comprised of materials provided by or a design specified by Purchaser; or (v) has failed as a result of ordinary wear and tear. Equipment supplied by NOARK but manufactured by others is warranted only to the extent of the manufacturer’s warranty, and only the remedies, if any, provided by the manufacturer will be allowed.
(e) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE PROVIDED BY STATUTE, COMMON LAW OR OTHERWISE, WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE PURCHASER’S EXCLUSIVE REMEDIES AND NOARK’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
10. Indemnity.
(a) NOARK shall defend at its own expense any action brought against Purchaser alleging that the Equipment or the use of the Equipment to practice any process for which such Equipment is specified by NOARK (a “Process”) directly infringes any claim of a patent of the United States of America and to pay all damages and costs finally awarded in any such action, provided that Purchaser has given NOARK prompt written notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof including the right to settle or otherwise terminate such action in behalf of Purchaser.
(b) NOARK shall have no obligation hereunder and this provision shall not apply to: (i) any other equipment or processes, including Equipment or Processes which have been modified or combined with other equipment or process not supplied by NOARK; (ii) any Equipment or Process supplied according to a design, other than an NOARK design, required by Purchaser; (iii) any products manufactured by the Equipment or Process; (iv) any patent issued after the date hereof; or (v) any action settled or otherwise terminated without the prior written consent of NOARK.
(c) If, in any such action, the Equipment is held to constitute an infringement, or the practice of any Process using the Equipment is finally enjoined, NOARK shall, at its option and its own expense, procure for Purchaser the right to continue using said Equipment; or modify or replace it with non-infringing equipment or, with Purchaser’s assistance, modify the Process so that it becomes non-infringing; or remove it and refund the portion of the price allocable to the infringing Equipment. THE FOREGOING PARAGRAPHS STATE THE ENTIRE LIABILITY OF NOARK AND EQUIPMENT MANUFACTURER FOR ANY PATENT INFRINGEMENT.
(d) To the extent that said Equipment or any part thereof is modified by Purchaser, or combined by Purchaser with equipment or processes not furnished hereunder (except to the extent that NOARK is a contributory infringer) or said Equipment or any part thereof is used by Purchaser to perform a process not furnished hereunder by NOARK or to produce an article, and by reason of said modification, combination, performance or production, an action is brought against NOARK, Purchaser shall defend and indemnify NOARK in the same manner and to the same extent that NOARK would be obligated to indemnify Purchaser under this “Patent Indemnity” provision.
(e) Notwithstanding the above (a) through (d), Purchaser shall defend, indemnify, and hold NOARK harmless from and against all claims, liabilities, costs and expenses (including, but not limited to, those related to injury to or death of Purchaser’s employees, and including prompt payment of reasonably legal fees) arising from or connected with any third party claims related to injury to or death of any person or persons, or damage to or loss of property in any way arising from or connected with the possession, handling, processing or use of the Equipment by Purchaser, except those resulting solely from the use of the Equipment not conforming to the contracted Specifications, which non-conformity was not known to Purchaser.
11. Limitation of Liability.
(a) In no event shall NOARK, its suppliers or subcontractors be liable for special, indirect, incidental or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, loss of profits or revenue, loss of use of the Equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or downtime costs, delays, and claims of customers of the Purchaser or other third parties for any damages. NOARK’s liability for any claim whether in contract, warranty, tort, negligence, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from this Agreement or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any equipment covered by or furnished under this Agreement, shall in no case (except as provided in the section entitled “Patent Indemnity”) exceed one-half (1/2) of the purchase price allocable to the Equipment or part thereof which gives rise to the claim.
(b) All causes of action against NOARK arising out of or relating to this Agreement or the performance or breach hereof shall expire unless brought within one year of the time of accrual thereof.
(c) In no event, regardless of cause, shall NOARK be liable for penalties or penalty clauses of any description or for indemnification of Purchaser or others for costs, damages, or expenses arising out of or related to the Equipment.
12. Disputes
The parties shall attempt in good faith promptly to resolve any dispute arising hereunder by negotiations between representatives of the parties who have authority to settle the dispute. If unsuccessful, the parties further shall attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. Any dispute not so resolved by negotiation or mediation will then be submitted to a court of competent jurisdiction in accordance with the terms hereof. These procedures are the exclusive procedures for the resolution of all such disputes between the parties.
13. Laws and Regulations.
NOARK does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Equipment is the sole responsibility of the Purchaser. All laws and regulations referenced herein shall be those in effect as of the Proposal date. In the event of any subsequent revisions or changes thereto, NOARK assumes no responsibility for compliance therewith. If Purchaser desires a modification as a result of any such change or revision, it shall be treated as a change per Article 5. Nothing contained herein shall be construed as imposing responsibility or liability upon NOARK for obtaining any permits, licenses or approvals from any agency required in connection with the supply, erection or operation of the Equipment. This Agreement shall be governed by and interpreted in accordance with the laws, rules and regulation of the jurisdiction and/or forum in which Seller’s principal place of business resides. The parties will be subject to the exclusive jurisdiction and venue of state or federal court in which Seller’s Principal place of business resides, but specifically excluding the provisions of the 1980 United Nations Convention on Contracts for the International Sales of Goods (Vienna, 11 April 1980 and any successor thereto). If any provision hereof, partly or completely, shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed. Each party represents and warrants that it understands and shall comply with the requirements of the U.S. Foreign Corrupt Practices Act and all other applicable anti-bribery and anti-corruption laws of the jurisdictions under which each party is or may be acting hereunder.
14. Inventions and Information.
Unless otherwise agreed in writing by NOARK and Purchaser, all right, title and interest in any inventions, developments, improvements or modifications of or for Equipment shall remain with NOARK. Any design, manufacturing drawings or other information submitted to the Purchaser remains the exclusive property of NOARK. Purchaser shall not, without NOARK’s prior written consent, copy or disclose such information to a third party. Such information shall be used solely for the operation or maintenance of the Equipment and not for any other purpose, including the duplication thereof in whole or in part. Purchaser shall not use in any manner any trade names or trademarks applied to or used by NOARK with respect to any Equipment, unless otherwise agreed by NOARK in writing.
15. Force Majeure.
NOARK shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control including but not limited to acts of war (declared or undeclared), Acts of God, fire, strike, labor difficulties, acts or omissions of any governmental authority or of Purchaser, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production, and the price will be adjusted to compensate NOARK for such delay.
16. Cancellation.
Cancellation by Buyer prior to shipment is permitted only by written notice and upon payment to Seller of reasonable cancellation and restocking charges, including reimbursement for direct costs. Unless specified to the contrary in the quote/proposal, cancellation charges associated with orders for custom Products or Products specifically manufactured to Buyer’s specification may equal the actual selling price of the Products, as indicated by the table below. Seller has the right to cancel an order for cause at any time by written notice, and Seller will be entitled to cancellation and restocking charges as identified above.
| After receipt of order or before approval drawings are completed | 15% |
| After approval drawing completion, but before release to manufacturing | 30% |
| Before start of fabrication, but after major component purchase | 60% |
| After start of fabrication, but before start of assembly | 80% |
| After assembly has started | 100% |
17. Termination.
No termination by Buyer for cause will be effective unless and until Seller has failed to correct such alleged cause within forty-five (45) days after receipt of Buyer’s written notice specifying such cause.
18. Export Control.
(a) Purchaser represents and warrants that the Equipment provided hereunder, and the “direct product” thereof are intended for civil use only and will not be used, directly or indirectly, for the production of chemical or biological weapons or of precursor chemicals for such weapons, or for any direct or indirect nuclear end use. Purchaser agrees not to disclose, use, export or re-export, directly or indirectly, any information provided by NOARK, or the “direct product” thereof as defined in the Export Control Regulations of the United States Department of Commerce, except in compliance with such Regulations.
(b) If applicable, NOARK shall file for a U.S. export license, but only after appropriate documentation for the license application has been provided by Purchaser. Purchaser shall furnish such documentation within a reasonable time after order acceptance. Any delay in obtaining such license shall suspend performance of this Agreement by NOARK. If an export license is not granted or, if once granted, is thereafter revoked or modified by the appropriate authorities, this Agreement may be canceled by NOARK without liability for damages of any kind resulting from such cancellation. At NOARK’s request, Purchaser shall provide to NOARK a Letter of Assurance and End-User Statement in a form reasonably satisfactory to NOARK.
19. Assignment.
Any assignment of this Agreement or of any rights or obligations under the Agreement without prior written consent of NOARK shall be void. In the event that Purchaser transfers its business involving Equipment under these Terms, through a sale of stock or assets, the new owner(s), as a condition of the sale or transfer and subject to NOARK’s express written consent shall be obligated by Purchaser to assume all of Purchaser’s obligations under these Terms relating to the affected Equipment.
20. Resale.
If Purchaser resells any of the Equipment, the sale terms shall limit NOARK’s liability to the buyer to the same extent that NOARK’s liability to Purchaser is limited hereunder.
21. Entire Agreement.
This Agreement constitutes the entire agreement between NOARK and Purchaser. There are no agreements, understandings, restrictions, warranties, or representations between NOARK and Purchaser other than those set forth herein or herein provided.
22. General.
(a) This Agreement is in English. In the event this Agreement is translated into a language or languages other than English, this version in English shall be controlling on all questions of interpretation and performance.
(b) The rights and obligations under Sections 3, 5, 6, 9, 10, 12 – 14, 16, 17 shall survive the cancellation, termination or expiration of these Terms.
NOARK Electric North America
2188 Pomona Blvd. • Pomona, CA 91768 • Phone: 626.330.7007 • na.noark-electric.com