All sales of products (“Products”) by NEMB (“Seller”) are subject to these terms and conditions (“Terms”) of sale, unless otherwise agreed to in writing by Seller. All quotations from Seller to the purchaser (“Buyer”) of Products are offered for prompt acceptance and are subject to change without notice prior to acceptance by Buyer. Any quotation or purchase order (“Purchase Order” or “Contract”) between Buyer and Seller will be governed by these Terms, regardless of whether or not Buyer or Seller expressly makes reference to these Terms in any documentation related to any such sale of Products. No Purchase Order or Contract between Seller and Buyer shall be effective unless and until such Purchase Order or Contract is executed or otherwise approved in writing by the Seller. Seller hereby objects to and rejects any terms in Buyer’s Purchase Order or other Buyer documents that are different than or in addition to these Terms, and such different or additional terms shall not constitute any part of the agreement between Buyer and Seller, unless such different or additional terms are approved and accepted by Seller in writing.

1. PRICES: All prices are F.O.B. Seller’s factory and exclusive of any federal, state or local sales, use or excise taxes and/or duties. Wherever applicable, any tax will be added to the invoice as a separate charge to be paid by Buyer. All quotations automatically expire 30 calendar days from date of issue. The price of any Products scheduled for shipment on a date beyond a period of 120 days from Seller’s order confirmation is subject to increase by Seller unless otherwise stated on the Contract.
2. PAYMENT: Payment shall be due to Seller in full net 30 days from the date of invoice.
3. LATE PAYMENT: Any amount not paid to Seller when due shall bear interest at the rate of the lower of 18% per annum or the maximum interest rate permitted by law, calculated from the due date for payment.
4. CHANGES: Should Seller make any changes at the request of Buyer, then the price and the time schedules quoted herein are subject to change to reflect cost or schedule adjustments caused by the changes. Seller shall not be obligated to perform work on any changes without written agreement from Buyer.
5. CANCELLATION: Partial or total cancellation of, or revision to, an order may be made only by Buyer’s written request that is accepted by Seller’s written consent, in Seller’s sole discretion, and then only on the condition that Buyer reimburse Seller for all losses and damages resulting from the cancellation or revisions, including cancellation charges imposed by Seller. If the order calls for special sizes or requires special materials or tooling, cancellation charges will be made on the basis of costs incurred and time expended.
6. COMPLETE ORDERS: Seller reserves the right to call an order complete if total shipments are plus or minus 10% of the total order.
7. SHIPPING: Products are shipped F.O.B. Seller’s factory. Any extra or special handling charges must be paid by Buyer. Risk of loss or damage and responsibility shall pass from Seller to Buyer upon Seller’s delivery to a common carrier. Any claims for shortages or damages suffered in transit are the sole responsibility of Buyer and shall be submitted by Buyer directly to the common carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. While Seller will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed.
8. TITLE; SECURITY INTEREST: Until Buyer has completed payment for the Products (i) title and ownership to the Products shall remain with Seller and (2) Seller hereby reserves, and Buyer hereby grants to Seller, a purchase money security interest in the Products. Buyer agrees to report and pay taxes and to provide adequate insurance on Products as though title thereto had vested in Buyer.
9. INSURANCE AND RISK OF LOSS: Products manufactured by Seller shall at all times after delivery to Buyer, Buyer’s agent or transportation company, whichever occurs first, be the sole responsibility of Buyer, and all loss or damage to said Products or any part thereof shall be borne by Buyer (even if Seller has arranged for transportation), unless otherwise agreed in writing.
10. DEFECTIVE PRODUCTS: Claims for defective Products or workmanship must be verified by Seller or an authorized representative of Seller, before return of any Products. Further, shipping instructions and written Return Material Authorization (“RMA”) must be obtained from Seller before Products are returned. All claims for shortage or defective Products must be made within 30 days from the date of delivery.
11. ACCEPTANCE: The following shall be deemed to be acceptance of the Products by Buyer: (i) Buyer’s acceptance of delivery of the Products, (ii) Payment of the purchase price for the Products; (iii) use of the Products in a product manufactured by Buyer; or (iv) Buyer’s resale of the Products. On all Products rejected for non-conformance or for which acceptance is justifiably revoked by Buyer due to non-conformance, and all Products delivered in error (including Products in excess of the quantity ordered by Buyer), Seller shall retrieve such Products upon written notice from Buyer and if it does not do so within 30 days, Buyer reserves the right to return such Products by any reasonable means.
12. FORCE MAJEURE: Seller shall be excused for delays in the performance of its obligations hereunder due to causes beyond its reasonable control, or the control of its suppliers, including, but not limited to acts of God, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, strikes, labor disputes, sabotage, accident or breakdown of machinery or plant, unavailability of transportation, restraints affecting the delivery of material or credit, any acts by a third party, any third party products or any other cause beyond the reasonable control of Seller, including, but not limited to failures or fluctuations in electrical power, heat, light, air conditioning, computer hardware and/or software or telecommunications equipment (each, an “Event of Force Majeure”). Upon the occurrence of an Event of Force Majeure, Seller shall be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Event of Force Majeure for as long as such Event of Force Majeure continues and Seller continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without undue delay.
13. CONFIDENTIALITY: Buyer shall keep all proprietary or non-public information or data confidential of or regarding Seller or the Products, including without limitation all pricing, shipping and payment terms and other information disclosed and/or supplied by Seller as part of, or in conjunction with, the sale of Products by Seller to Buyer.
14. LIMITED WARRANTY: Products will be free from defects at the time of delivery and will conform to Buyer’s specifications, provided, however, that the specifications are submitted to Seller in writing prior to Seller’s commencement of work to fulfill the order. This warranty is limited to repair, replacement or issuing of credit, as Seller may elect, of such Products as shall appear and be determined by Seller, upon inspection and verification, to have been defective in material or workmanship, but does not include any installation, labor or transportation costs. All warranty requests require Seller’s written authorization and a new Purchase Order. After evaluation, if deemed to be covered under warranty, the new Purchase Order will not be charged. No warranty is made with respect to items manufactured by others. Misapplication, misuse, revision, or alteration (i.e., dimensional, characteristics, chemical properties, or metallurgical properties) of the Products, without written approval by Seller, will void the limited warranty.
15. WARRANTY EXCLUSION: Except for the Limited Warranty set forth in Section 14, SELLER PROVIDES THE PRODUCTS “AS IS” AND MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY OTHER WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
16. LIMITATION OF LIABILITY: SELLER’S TOTAL LIABILITY AND BUYER’S OR ANY THIRD PARTY’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, ARISING FROM OR IN CONNECTION WITH THE CONTRACT OR USE OF SELLER’S PRODUCTS, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES ARISING FROM SELLER’S NEGLIGENCE OR BREACH OF ITS OBLIGATIONS HEREUNDER IN AN AMOUNT NOT TO EXCEED IN THE AGGREGATE THE AMOUNTS ACTUALLY PAID BY BUYER TO SELLER UNDER THE CONTRACT.
17. EXCLUSION OF DAMAGES: IN NO EVENT SHALL SELLER HAVE ANY LIABILITY, REGARDLESS OF THE FORM OF ACTION AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF INTERESTS, PROFITS, REVENUES, OR USE) SUFFERED BY BUYER, ARISING FROM OR RELATED TO THE CONTRACT, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. SELLER ALSO EXPRESSLY DISCLAIMS ANY LIABILITY RELATED TO MISUSE OF THE PRODUCTS, IMPROPER PRODUCT SELECTION, PRODUCT RECOMMENDATION, OR MISAPPLICATION OF THE PRODUCTS.
18. INDEMNIFICATION: Buyer shall indemnify and hold Seller, and its officers, directors, employees and agents harmless against any and all losses, claims, damages, judgments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of or in any way related to (i) Buyer’s obligations under the Purchase Order ; (ii) Buyer’s use of or changes to the Products; (iii) defects in the Products due to the specifications furnished by Buyer to Seller; and (iv) amounts, including taxes, interest and penalties which are obligations of Buyer.
19. SEVERABILITY AND WAIVER: If any provision hereof shall be held illegal or unenforceable by any regulatory body or court of competent jurisdiction, such provision(s) shall be deemed null and void and separable from and shall in no way affect or impair the validity or enforceability of, the remaining provisions. No delay or omission by Seller to exercise any right or power it has hereunder shall impair or be construed as a waiver of such right or power. A waiver by Seller of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant.
20. ASSIGNMENT; BINDING EFFECT: Buyer shall not assign, without the prior written consent of Seller, any right or interest hereunder or under any Purchase Order. Any actual or attempted assignment without Seller’s consent prior written consent shall entitle Seller to terminate the Purchase Order upon notice to Buyer. These Terms shall be binding upon and inure to the benefit of Buyer and Seller and their respective successors and permitted assigns.
21. AMENDMENTS: No amendment to, or change, waiver or discharge of, any provision of the Purchase Order shall be valid unless in writing and signed by an authorized representative of each of Buyer and Seller.
22. COMPLIANCE WITH LAWS: Buyer shall comply with all federal, state and local laws, ordinances and regulations governing the storage, handling and use of the Products, and shall indemnify and hold Seller harmless for any non-compliance. Buyer shall at its own expense apply for and obtain any permits or licenses that may be required for the storage, handling and use of the Products.
23. GENERAL: The Terms contained herein supersede and take precedence over any and all terms, including, but not limited to, any contrary terms, in any documents (such as proposals, invoices, shipping documents, purchase orders or other writings, whether or not preprinted or signed by Seller’s or Buyer’s agent, employee, or representative) submitted by Buyer to Seller. If there is a conflict or inconsistency between the Terms hereunder and the terms and conditions of any subsequent Purchase Order or delivery document, the Terms hereunder shall control unless otherwise agreed to in writing by Seller.

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