OFFER TO SELL
Terms and conditions applicable when buying products or services from NN, Inc. or its subsidiaries:
The products and services provided by NN, Inc. and its subsidiaries are offered for sale at prices to be established by NN or its subsidiaries. Offers and acceptance by any customer shall be governed by all of the following Terms and Conditions. Customer orders for any product or service when communicated to NN verbally or in writing shall constitute acceptance of this offer. For purposes of this document, all products and services will be referred to as “Products,” those purchasing such Products will be referred to as “Buyers” and references to “NN” or “Seller” includes NN, Inc. and its subsidiaries.
1. Terms and Conditions. NN’s acceptance of an order for products from a Buyer is conditioned on Buyer’s agreement to these Terms and Conditions. and to the terms and conditions found online at https://www.nninc.com/company/legal-information/. NN objects to any contrary or additional term or condition of Buyer’s order or any other document issued by Buyer.
2. Price Adjustments; Payments. Prices submitted by NN are valid for 30 days. After 30 days, NN may change prices to reflect any increase in its costs resulting from state, federal or local legislation, price increases from its suppliers, changes in the rate, charge, or classification of any carrier or for any other reason whatsoever. Prices submitted do not include any sales, use, or other taxes unless so stated. Unless otherwise specified by NN, all prices are F.O.B. NN’s facility, and payment is due 30 days from the date of invoice. After 30 days, Buyer shall pay interest on any unpaid invoices at a rate equal to the lesser of 1.5% per month or the maximum allowable rate under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these terms and conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any products if Buyer fails to pay any amounts when due hereunder and such failure continues for 30 days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
3. Delivery Dates; Title and Risk; Shipment. All delivery dates are approximate and NN shall not be responsible for any damages resulting from any delay. Regardless of the manner of shipment, title to any Products and risk of loss or damage shall pass to Buyer upon tender to the carrier at Seller’s facility. Unless otherwise stated, Seller may exercise its judgment in choosing the carrier and means of delivery. No deferment of shipment at Buyers’ request beyond the respective dates indicated will be made except on terms that will indemnify, defend, and hold Seller harmless against all loss and additional expense. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the delivery point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to Seller’s notice that the Products have been delivered at the delivery point, or if Seller is unable to deliver the Products at the delivery point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option and at Buyer’s cost (including, without limitation, costs in connection with storage and insurance), may store the Products until Buyer accepts delivery of such Products. Buyer shall be responsible for any additional shipping charges incurred by Seller due to Buyer’s changes in shipping, product specifications or in accordance with Section 13, herein.
4. Limited Warranty. Seller warrants that the Products sold hereunder shall be free from defects in material or workmanship for a period of twelve months from the date of delivery to Buyer or 2,000 hours of normal use, whichever occurs first. Upon Seller’s verification that any Products are defective during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Products to Seller. The remedies set forth in this Section 4 shall be Buyer’s sole and exclusive remedy for any breach of the limited warranty set forth in this Section 4. The prices charged for Seller’s products are based upon the exclusive limited warranty stated above, and upon the following disclaimer: THIS WARRANTY COMPRISES THE SOLE AND ENTIRE WARRANTY PERTAINING TO PRODUCTS PROVIDED HEREUNDER. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Claims; Commencement of Actions. Buyer shall promptly inspect all Products upon delivery. No claims for shortages will be allowed unless reported to the Seller within 10 days of delivery. No other claims against Seller will be allowed unless asserted in writing within 60 days after delivery or, in the case of an alleged breach of warranty, within 30 days after the date within the warranty period on which the defect is or should have been discovered by Buyer. Any action based upon breach of this agreement or upon any other claim arising out of this sale (other than an action by Seller for any amount due to Seller from Buyer) must be commenced within thirteen months from the date of tender of delivery by Seller or, for a cause of action based upon an alleged breach of warranty, within thirteen months from the date within the warranty period on which the defect is or should have been discovered by Buyer.
6. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR AS THE RESULT OF, THE SALE, DELIVERY, NON-DELIVERY, SERVICING, USE OR LOSS OF USE OF THE PRODUCTS OR ANY PART THEREOF, OR FOR ANY CHARGES OR EXPENSES OF ANY NATURE INCURRED WITHOUT SELLER’S WRITTEN CONSENT, EVEN IF SELLER HAS BEEN NEGLIGENT, WHETHER IN CONTRACT, TORT, OR OTHER LEGAL THEORY. IN NO EVENT SHALL SELLER’S LIABILITY UNDER ANY CLAIM MADE BY BUYER EXCEED THE PURCHASE PRICE OF THE PRODUCTS.
7. Contingencies. Seller shall not be liable for any default or delay in performance if caused by circumstances beyond the reasonable control of Seller.
8. User Responsibility. The user, through its own analysis and testing, is solely responsible for making the final selection of the system and Product and assuring that all performance, endurance, maintenance, safety, and warning requirements of the application are met. The user must analyze all aspects of the application and follow applicable industry standards and Product information. If Seller provides Product or system options, the user is responsible for determining that such data and specifications are suitable and sufficient for all applications and reasonably foreseeable uses of the Products or systems.
9. Loss to Buyer’s Property. Any designs, tools, patterns, materials, drawings, confidential information, or equipment furnished by Buyer or any other items which become Buyer’s property, may be considered obsolete and may be destroyed by Seller after two consecutive years have elapsed without Buyer placing an order for the items which are manufactured using such property. Seller shall not be responsible for any loss or damage to such property while it is in Seller’s possession or control.
10. Special Tooling. A tooling charge may be imposed for any special tooling, including without limitation, dies, fixtures, molds, and patterns, acquired to manufacture Products. Such special tooling shall be and remain Seller’s property notwithstanding payment of any charges by Buyer. In no event will Buyer acquire any interest in apparatus belonging to Seller which is utilized in the manufacture of the Products, even if such apparatus has been specially converted or adapted for such manufacture and notwithstanding any charges paid by Buyer. Unless otherwise agreed, Seller shall have the right to alter, discard or otherwise dispose of any special tooling or other property in its sole discretion at any time.
11. Buyer’s Obligation; Rights of Seller. To secure payment of all sums due or otherwise, Seller shall retain a security interest in the products delivered, and this agreement shall be deemed a Security Agreement under the Uniform Commercial Code. Buyer authorizes Seller as its attorney to execute and file on Buyer’s behalf all documents Seller deems necessary to perfect its security interest. Seller shall have a security interest in, and lien upon, any property of Buyer in Seller’s possession as security for the payment of any amounts owed to Seller by Buyer. Buyer shall reimburse Seller for its reasonable attorney fees and other expenses incurred in attempting to collect any overdue account.
12. Improper use and Indemnity. Buyer shall indemnify, defend, and hold Seller harmless from any claim, liability, damages, lawsuits, and costs (including attorney fees), whether for personal injury, property damage, patent, trademark or copyright infringement or any other claim, brought by or incurred by Buyer, Buyer’s employees, or any other person, arising out of: (a) improper selection, improper application or other misuse of Products purchased by Buyer from Seller; (b) any act or omission, negligent or otherwise, of Buyer; (c) Seller’s use of patterns, plans, drawings, or specifications furnished by Buyer to manufacture Product; or (d) Buyer’s failure to comply with these terms and conditions. Seller shall not indemnify Buyer under any circumstance except as otherwise provided.
13. Cancellations and Changes. Orders shall not be subject to cancellation or change by Buyer for any reason, except with Seller’s written consent and upon terms that will indemnify, defend, and hold Seller harmless against all direct, incidental, and consequential loss or damage. Seller may change product features, specifications, designs, and availability with notice to Buyer.
14. Limitation on Assignment. Buyer may not assign its rights or delegate obligations under this agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
15. Entire Agreement. This agreement contains the entire agreement between the Buyer and Seller and constitutes the final, complete, and exclusive expression of the terms of the agreement. All prior or contemporaneous written or oral agreements or negotiations with respect to the subject matter are herein merged.
16. Waiver and Severability. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. Failure to enforce any provision of this agreement will not waive that provision nor will any such failure prejudice Seller’s right to enforce that provision in the future. Invalidation of any provision of this agreement by legislation or other rule of law shall not invalidate any other provision herein. The remaining provisions of this agreement will remain in full force and effect.
17. Termination. This agreement may be terminated by Seller for any reason and at any time by giving Buyer thirty (30) days written notice of termination. In addition, Seller may by written notice immediately terminate this agreement for the following: (a) Buyer commits a breach of any provision of this agreement; (b) the appointment of a trustee, receiver or custodian for all or any part of Buyer’s property; (c) the filing of a petition for relief in bankruptcy of the other Party on its own behalf, or by a third party; (d) an assignment for the benefit of creditors; or (e) the dissolution or liquidation of the Buyer.
18. Governing Law. This agreement and the sale and delivery of all Products hereunder shall be deemed to have taken place in and shall be governed and construed in accordance with the laws of the State of North Carolina, as applicable to contracts executed and wholly performed therein and without regard to conflicts of laws principles. Buyer irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts of Mecklenburg County, North Carolina with respect to any dispute, controversy or claim arising out of or relating to this agreement. Disputes between the parties shall not be settled by arbitration unless, after a dispute has arisen, both parties expressly agree in writing to arbitrate the dispute.
19. Indemnity for Infringement of Intellectual Property Rights. Seller shall have no liability for infringement of any patents, trademarks, copyrights, trade dress, trade secrets or similar rights except as provided in this Section. Seller will defend and indemnify Buyer against allegations of infringement of U.S. patents, U.S. trademarks, copyrights, trade dress and trade secrets (“Intellectual Property Rights”) based on an allegation that Seller’s manufacture of a Product sold pursuant to this Agreement infringes the Intellectual Property Rights of a third party. Seller’s obligation to defend and indemnify Buyer is contingent on Buyer notifying Seller within ten (10) days after Buyer becomes aware of such allegations of infringement, and Seller having sole control over the defense of any allegations or actions including all negotiations for settlement or compromise. If a Product is subject to a claim that it infringes the Intellectual Property Rights of a third party, Seller may, at its sole expense and option, procure for Buyer the right to continue using the Product, replace or modify the Product so as to make it non-infringing, or offer to accept return of the Product and return the purchase price less a reasonable allowance for depreciation. Notwithstanding the foregoing, Seller shall have no liability for claims of infringement based on information provided by Buyer or directed to Products delivered hereunder for which the designs are specified in whole or part by Buyer, or infringements resulting from the modification, combination or use in a system of any Product sold hereunder. The foregoing provisions of this Section shall constitute Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy for infringement of Intellectual Property Rights.
20. Export Controls. Buyer hereby acknowledges that the Products and technology or direct products thereof (“Products and Technology”), supplied by Seller under this agreement may be subject to export controls under the laws and regulations of the United States (U.S.). Seller shall comply with such laws and regulations governing use, export, re-export, and transfer of Seller Products and Technology and will obtain all required U.S. and local authorizations, permits, or licenses. NN and Buyer each agree to provide the other such information and assistance as may reasonably be required by the other in connection with securing such authorizations or licenses, and to take timely action to obtain all required support documents. Buyer agrees to maintain full, true, and accurate records of exports, re-exports, and transfers of the Products and Technology, purchased and deployed or distributed, according to U.S. and local laws (minimum 5 years).
21. Taxes. Unless otherwise indicated, all prices and charges are exclusive of excise, sales, use, property, occupational or like taxes which may be imposed by any taxing authority upon the manufacture, sale, or delivery of Products.
22. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms and conditions.
23. Equal Opportunity Clause. For the performance of government contracts and where dollar value of the Products exceeds $10,000, the equal employment opportunity clauses in Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act, 41 C.F.R. §§ 60-1.4(a), 60-741.5(a), and 60-250.4, and related laws and regulations, as such may be amended from time to time, are incorporated herein by reference.
NN Offer to Sell (rev. 02-09-2024)
