Terms & Conditions
1. AGREEMENT OF SALE: Acceptance by Seller of any order placed for Seller's products (the "Products"), whether submitted by telephone or on Buyer's purchase order form or otherwise, shall be subject to these Terms and is conditioned upon the Buyer's acceptance of these Terms. Any terms or conditions appearing on the Buyer's purchase order or other form which are inconsistent with the terms and conditions hereof shall not be binding on Seller and shall not be considered applicable to the sales or shipment of the Products. This Invoice shall be deemed notification of and objection to such inconsistent, additional and/or different terms and a rejection thereof. Receipt by Buyer or Buyer's agent of the Products will constitute Buyer's acceptance of these Terms, although Buyer's indication of acceptance is not limited to the foregoing method.
2. RISK OF LOSS: Title, risk of loss or damage, and possession shall pass to Buyer when the Products are delivered to the carrier or picked up at the Seller's facility by or on behalf of Buyer, as the case may be, and the Products shall be at the risk of Buyer from and after such delivery or pick up.
3. TAXES; PAYMENT: Taxes and duties of any nature imposed by reason of sale or use of the Products will be added to the selling price and Buyer agrees to pay and save Seller harmless from all such taxes or duties payable by Buyer to any governmental unit, including penalties and interest. If Buyer fails to comply with any terms of payment, in addition to Seller's other rights and remedies, but not in limitation thereof, any unpaid amount shall become due immediately together with a service charge of 1 1/2% per month and reasonable attorneys' fees incurred by Seller.
4. FORCE MAJEURE: Seller shall not be liable for any delay or default in performance of orders, or in the delivery of the Products, or for any failure of such performance or delivery, or for any damages suffered by Buyer by reason thereof, when such delay, default or failure is, directly or indirectly, caused by or in any manner arises from any emergency, cause, condition, contingency or other event affecting, or beyond the reasonable control of, Seller, including, without limitation, strikes, lockouts, slowdowns, boycotts, picketing, riots, civil commotion, sabotage, acts of war, embargoes, carrier shortage, material shortage, utilities, prohibition or restrictions against manufacture, sale and shipment of the Products imposed by any Federal, state or municipal authority, orders of any domestic or foreign state or nation or municipal authority, fires, accidents, floods, and any and all other acts of God. In the event of any such contingency, the time for performance by Seller shall be extended for a period equal to the time lost by reason of the delay.
5. WARRANTIES, INSPECTION AND DISCLAIMER: Seller warrants, only to Buyer, the Products will be sold free and clear of all liens and encumbrances and in conformance with the description and specifications, if any, set forth on the face of this Invoice. THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. As between Seller and Buyer, except as provided herein, the Products are delivered to Buyer "as is." Seller has not designed or manufactured the Products, and is not responsible for any design or manufacturing defects. Final determination of the suitability of the Products for the use contemplated by Buyer is the sole responsibility of Buyer, and Seller shall in no way be responsible for the suitability of the Products for any particular end use. Buyer shall inspect the Products immediately upon their receipt. Claims for shortage or for mistakes or errors in billing or as to a defect or nonconformity in any Products must be presented within 15 days from the date of receipt of the Products and must state the date of such receipt and the invoice number applicable to the claim. Any claim not so presented will be conclusively deemed waived. Buyer must hold any Products claimed to be defective or nonconforming until such Products are evaluated by Seller. If any Products are defective or nonconforming, BUYER'S SOLE AND EXCLUSIVE REMEDY, AND SELLER'S SOLE OBLIGATION UNDER THIS WARRANTY, SHALL BE REPLACEMENT OF THE DEFECTIVE PRODUCTS OR REFUND OF THE PURCHASE PRICE THEREOF, AS DETERMINED IN SELLER'S SOLE OPTION.
6. LIMITATION OF LIABILITY: UPON REFUND OF THE PURCHASE PRICE OR REPLACEMENT, SELLER SHALL HAVE NO FURTHER OBLIGATION TO BUYER WITH RESPECT TO THE PRODUCTS. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR OTHER DAMAGES, LOSSES, OR EXPENSES IN CONNECTION WITH, OR BY REASON OF THE INABILITY TO USE THE PRODUCTS FOR ANY PURPOSE, OR FOR DAMAGES AND/OR INJURIES INCURRED BY BUYER, ITS AGENTS AND EMPLOYEES, BY VIRTUE OF DEFECTS IN THE PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action against Seller for breach of warranty or contract, negligence or other alleged liability arising out of this Invoice must be commenced within one year after such cause of action accrues, and must otherwise conform to the requirement of these Terms.
7. ENTIRE AGREEMENT; WAIVERS, ETC.: (a) This Invoice shall inure to the benefit of Seller's successors and assigns and shall be binding upon Buyer's successors and assigns. (b) This Invoice shall be governed by the laws of the State of New York. Whenever possible, each of the terms and conditions of this Invoice is to be interpreted in such manner as to be effective and valid under applicable law, but if any such term or condition is prohibited or invalid under such law, such term and condition is to be ineffective only to the extent of such prohibition and invalidity, without invalidating the remainder of such term or condition or the remaining terms and conditions hereof. (c) These Terms together with any other terms and conditions set forth in this Invoice constitute the entire agreement between the parties governing the purchase and sale of the Products indicated on the face hereof and supersede all prior and contemporaneous discussions and agreements between the parties concerning such Products. There are no promises, covenants, representations or agreements, oral or written, other than as expressly set forth herein. (d) This Invoice may not be modified, amended, changed or terminated, and no term or condition hereof may be waived, unless such waiver, modification, amendment, change or termination is in writing and signed by duly authorized employees of Seller and Buyer. No delay or omission by Seller in exercising any right or remedy shall be a waiver thereof or of any other right or remedy, and no single or partial waiver thereof shall preclude any other right or remedy. No waiver of any term or condition, or breach thereof, in any instance, shall be deemed a waiver of any other term or condition hereof or any subsequent breach thereof. All rights or remedies of Seller hereunder are cumulative. (e) Buyer hereby consents to the jurisdiction of any state or federal court located within the State of New York and waives personal service of any and all service of process upon it and consents that all such service of process be made by certified or registered mail directed to Buyer at the address specified on the face hereof, and service so made shall be deemed to be complete upon receipt thereof. Buyer waives any objection to jurisdiction and venue of any action instituted against it as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.
Purchasing information shall describe the product to be purchased, including where appropriate
a) requirements for approval , procedures, and equipment,
b) requirements for the qualification of personnel,
c) Quality Management System requirements,
d) the identification and revision status of specifications, drawing, process requirements, inspection/verification instructions and other relevant technical data,
e) requirements for design, test, inspection, verification, use of statistical techniques for product acceptance, and related instructions for acceptance by the Company, and as applicable critical items including key characteristics
f) requirements regarding the need for the supplier to
- notify the Company of nonconforming product,
- obtaining Company approval for nonconforming product disposition,
- notifying the Company of changes in product and/or process, changes of suppliers,
changes of manufacturing facility location, and where required, obtain Company
- flow down to the supply chain the applicable requirements including customer
g) records retention requirements, and
h) right of access by the Company, our Customers, and regulatory authorities to the applicable areas of all facilities, at any level of the supply chain, involved in the order and to all applicable records
i) requirements for a certificate of conformity, test reports, and/or airworthiness certificate
These Terms and Conditions of Purchase (hereinafter referred to as "Condition(s)") shall act as a binding agreement between Nu Source Technologies LLC (hereinafter referred to as "NST or Buyer") with its principle office at 82 Union Street Mineola, NY 11501 and the Receiver of any Purchase Order (hereinafter referred to as "Seller"). For the consideration stated herein, Buyer and the Seller may be referred to herein collectively as "Party" and/or as "Parties."
1. Definitions: The following terms used herein shall have the described meaning:
(a) Buyer - Shall mean Nu Source Technologies LLC and/or the entity identified as Buyer in the Contract or PO.
(b) Contract and/or Purchase Order - Shall mean these Terms and Conditions, the Contract or Purchase Order to which these Terms and Conditions pertain, and any supplementary sheets, exhibits or attachments annexed by the Buyer (hereinafter referred to as "Contract(s) or PO(s)").
(c) Counterfeit Part - Shall mean any fraudulent part that has been confirmed to be a copy, imitation or substitute that has been represented, identified or marked as genuine and/or altered without legal right or with intent to mislead, deceive or defraud.
(d) Fraudulent Part - Shall mean any supplied Goods misrepresented to NST by the Seller and/or the Seller's Subtier Suppliers as meeting NST Contract or PO requirements.
(e) Goods - Shall mean all materials, supplies and or services identified in a NST Contract or PO (hereinafter referred to as "Goods").
(f) Nonconforming - Shall mean any materials, supplies or services that does not meet NST Contract, PO or quality requirements which may or may not be related to the Goods intended form, fit or function. Included, but not limited to, are issues related to Supplied Documentation, Quantity, Date/Lot Code Restrictions, Manufacturer Restrictions, Material Composition, Part Numbers, Material Shelf Life, Functional Failures, Cosmetic and/or other physical conditions that may or may not affect the Goods form, fit or functionality.
(g) Seller - Shall mean the Company and/or any of its Authorized Representative(s) that has received and processed an NST Contract or Purchase Order for the procurement of materials, supplies or services.
(h) Suspect Part - Shall mean any part in which there is an indication by visual inspection, testing or other means that it may meet the definition of Fraudulent or Counterfeit Part.
2. Goods Requirements: Seller agree to furnish and deliver to NST all Goods in accordance with these Conditions and terms of the PO. Upon receipt of a PO, the Seller shall be bound by the provisions of these Conditions and terms of the PO, unless Seller objects to any provision in writing prior to the shipment of Goods. Any of the following acts by the Seller shall constitute acceptance and understanding of these Conditions and terms of the PO:
(a) Signing and returning a copy of these Conditions;
(b) Signing and returning a copy of the purchase order;
(c) Shipment or delivery of any Goods referenced on the purchase order; and/or
(d) Return of Seller's own form of order acknowledgment.
3. Guarantee of Goods Source(s): The Seller shall ensure that only new and authentic Goods are delivered to Buyer. When providing Goods to Buyer, Seller shall endeavor to first procure Goods directly from the Original Component Manufacturers (OCMs), the OCM Authorized Distributor, or from Suppliers who has obtained such Goods directly from the OCM or their Authorized Distributors and can provide full supply chain traceability documentation to the OCM. Supply of Goods by the Seller that does not meet these source requirements is not authorized unless first approved in writing by NST via a signed Contract or PO.
4. Quality Management System: Seller warrant that it has or shall maintain a quality management system that at minimum complies with the International Organization for Standardization ISO 9001 Quality Management System Requirements, or other equivalent industry recognized standard. Sellers that has obtained certification or registration further warrants that in the event of a change in Certification Bodies, loss of or notice of losing registration shall notify NST in writing within 5 days of receiving such notification.
5. Supply Chain Traceability: Seller shall maintain a method of Goods traceability that ensures tracking of the Goods back to the Manufacturer of all Goods being delivered to Buyer. This traceability method shall clearly identify the name and location of all Supply Chain Intermediaries from the Manufacturer to the shipment of Goods to the Buyer. Traceability information shall include, but not limited to, Manufacturer's Part Numbers and Batch identification such as date codes, lot numbers, serializations, shelf life, material compositions and etc.
6. Record Retention: Seller shall keep and maintain records of this transaction and all related Goods inspection and test records for a minimum of 10 years from date of shipment. All such records shall be made available to the Buyer or Buyer's representatives upon request.
7. Price: Unless otherwise specified, the prices established by this Contract are firm fixed prices. Seller warrants that any unit prices charged herein do not exceed the unit prices charged by Seller to other Customers in substantially similar transactions. If Seller is liable to Buyer for any amounts, Buyer may, at its election, set-off such amounts against any amounts payable to Seller under this Contract.
8. Schedule and Delivery; Notice of Delay: Seller shall strictly adhere to all Purchase Order schedules and shall notify Buyer, in writing, immediately of any actual or potential delay to the performance of this Contract. Such notice shall include a revised schedule and shall not constitute a waiver to Buyer's rights and remedies hereunder.
9. Warranty: Unless stated otherwise in the documents accompanying these terms and conditions, and accepted by Buyer in writing, Seller warrants all Goods against defects in design and performance for a period of one year following delivery. Seller shall observe, comply with and afford Buyer all applicable warranties associated with Goods including Manufacturer's warranties and those contained in the New York Uniform Commercial Code, which shall be in addition to the warranties set forth herein. Seller hereby acknowledges that Buyer does not waive or accept any disclaimer of any such warranties. These warranties shall survive delivery, inspection, acceptance and payment and shall run to Buyer's Customers.
10. Inspection and Acceptance: Buyer's final acceptance of Goods or services is subject to Buyer's final inspection within 60 days after receipt of Goods, notwithstanding payment of Goods. Buyer may designate, at its option, a qualified third party to assist in making a determination in deeming the acceptability of Seller's Goods.
SELLER will be responsible for all direct and consequential costs associated with the delivery of non-conforming, counterfeit, suspect counterfeit or rejected products, including but not limited to: (i) replacement costs (ii) corrective or rework costs (iii) testing costs (iv) additional costs associated with the transport, financing or storage of Goods (v) any additional remedy that is accordance with Buyer's or Buyer's Customer's requirements.
11. Product Impoundment and Financial Responsibility: All product deemed fraudulent, suspect and/or deemed counterfeit but the Buyer shall be impounded in a secure location until such time that the product in question can be definitively deemed authentic either by the OCM or by an Independent Certified Test Facility. Fraudulent or Suspect product that cannot be definitively deemed authentic will not be returned to the Seller and will be destroyed with proof of destruction retained at Buyer's facility. Buyer will have no obligation to make payment for any non-authentic product that cannot otherwise be definitively authenticated. Seller will be required to refund to Buyer any payments made by Buyer for product that is deemed non-authentic.
12. Equal Employment Opportunity: Buyer is an equal employment opportunity employer and is a federal contractor. Buyer and Seller agree that, to the extent applicable, they will comply with Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act of 1974 and Section 503 of the Vocational Rehabilitation Act of 1973 and also agree that these laws are incorporated herein by this reference.
13. Right of Access: Buyer and Buyer's representatives shall have the right of access, on a non-interference basis, to any area of Seller's or Seller's supply chain sub-tier premises where any part of the work is being performed. Seller shall flow this requirement down to its sub tier supply chain Suppliers as a condition of this Contract. Seller shall, without additional costs to Buyer, provide all reasonable in-plant accommodations, facilities, and assistance for the safety and convenience of Buyer and Buyer's representatives in the performance of their duties.
14. Flow Down of Applicable Requirements: The requirements contained within this Contract shall be flowed down the supply chain, as applicable, including any special and/or specific Customer requirements.
15. Shipping: All Goods are to be shipped freight collect, F.O.B. destination by the specified carrier, unless otherwise stated.
(a) Do not charge insurance except upon Buyer's written request.
(b) Regardless of F.O.B. point, Seller agrees to bear all risk of loss, injury, or destruction of Goods ordered herein which occur prior to acceptance by Buyer.
(c) No such loss, injury, or destruction shall release Seller from any obligations hereunder.
(d) Any Goods received in excess of the quantity specified in this Contract may, at Buyer's option, be returned at Seller's sole expense. Buyer's count will be final and conclusive on all shipments not accompanied by a packing list.
16. Packaging, Shipment, and Transportation: All charges for boxing, packing, crating, and storage are included in the price stated herein. Goods shall be suitably packed to secure lowest transportation costs and to conform to the requirements of common carriers and any applicable specifications. All packages must bear Buyer's Purchase Order number. If purchase terms are F.O.B. shipping point. Seller will conform to Buyer's established routing and shipping instructions.
17. Indemnity: Seller shall defend, indemnify and hold harmless Buyer, its successors, assigns, Customers and users of items covered by this Contract from and against any and all penalties, liabilities, settlements, losses, damages, costs, charges, claims, reasonable counsel fees, and any other expenses, relating to or arising from any claims: (a) of every nature or character (including, without limitation, claims for personal injury, death or damage to property) based upon or arising out of any defect or alleged defect in the Goods or due to any actual or alleged negligence of Seller, or any of its employees or agents; (b) of infringement, actual or alleged, of any patent, trademark, copyright, or other tangible or intangible personal or property right; or (c) of violation, actual or alleged, of any applicable law, rule or regulation. Seller expressly warrants that the Goods and the sale of the Goods to Buyer are, in fact, free from any of the conditions set forth in the preceding sentence.
18. Assignment: Neither this order nor any rights or obligations herein may be assigned by Seller nor may Seller delegate the performance of any of its duties hereunder without, in either case, Buyer's prior written consent.
19. Goods, Methods, and Processes: Any knowledge or information which Seller shall have disclosed or may hereafter disclose to Buyer incident to the placing and filling of this Contract shall not, unless otherwise specifically agreed upon in writing by Buyer, be deemed to be confidential or proprietary information, and accordingly shall be acquired free from any restrictions (other than restrictions which may derive from a valid patent.)
20. Release of Information to Public: Seller shall not, without the prior written consent of Buyer, make any release of information concerning this order or any other information related to Buyer (other than to Seller's employees and subcontractors that is required for the performance of their duties), including copies of this order or identifying the items sold by Seller to Buyer, nor use the name of Buyer in any advertising or publicity, except as may be necessary to comply with proper legal demand.
21. Changes: The Seller may not add to, modify, supersede or otherwise alter these Conditions or the terms of the PO, unless such changes are agreed to in writing by an Authorized NST Representative. The Seller's failure to obtain NST's prior written approval of changes constitutes a material breach under the terms of this agreement. NST reserves the right to make and may request changes to these Conditions or the terms of the PO by written amendment for:
(a) Technical requirements;
(b) Shipment or packing methods;
(c) Place of delivery, inspection or acceptance;
(d) Reasonable adjustments in quantities, delivery schedules or both;
(e) Amount of Buyer-furnished property;
(f) Time of performance; and/or
(g) Place of performance.
If any such changes requested by Buyer causes an increase or decrease in the price of Goods or Goods delivery time, Seller shall promptly notify Buyer and assert its claim for equitable adjustment within 3 days after the change is requested. If applicable Buyer may withdraw the request for change or an equitable adjustment shall be made and reflected in a written amendment signed by both parties. However, nothing in this provision shall excuse Seller from immediately proceeding with the directed change(s) so long as such equitable adjustment, if requested is timely asserted and made.
22. Force Majeure: The following events, and only the following events, shall constitute force majeure under this Contract: (a) acts of God or of a public enemy; (b) acts of Government; (c) fires; (d) floods; (e) epidemics; (f) quarantine restrictions; (g) strikes; (h) freight embargoes; and, (i) unusually severe weather. In each case, the failure to perform must be entirely beyond the control and without the fault or negligence of the party claiming to be so affected. Each party shall give the other immediate notice of any event that such party claims is a Force Majeure condition that would prevent the party from performing its obligations hereunder, and of the cessation of the condition. A party's notice under this Section shall include the party's good faith estimate of the likely duration of the Force Majeure condition.
23. Termination for Convenience: Buyer may, by notice in writing, direct Seller to terminate work under this Contract in whole or in part, at any time, and such termination shall not constitute default. In such event, Buyer shall have all rights and obligations accruing to it either at law or in equity, including Buyer's rights to title and possession of the Goods and materials paid for. Buyer may take immediate possession of all work so performed upon notice of termination. Seller shall immediately stop work and limit costs incurred on the terminated work. Buyer, after deducting any amount(s) previously paid, shall reimburse Seller for the actual, reasonable, substantiated and allowable costs with the total amount to be paid by Buyer being determined by negotiation.
24. Termination for Default: Buyer may, by written notice of default to Seller, terminate this Contract in whole or in part, or, at Buyer's sole discretion, require Seller to post such financial assurance as Buyer deems reasonably necessary, if Seller fails to:
(a) deliver the Goods or to perform the services within the time specified in this Contract or any extension;
(b) make progress, so as to endanger performance of this Contract; or,
(c) Perform any of the other provisions of this Contract.
Buyer may require Seller to transfer title and deliver to Buyer, in the manner and to the extent directed by Buyer, any partially completed Goods and raw material, parts, tools, dies, jigs, fixtures, plans, drawings, services, information and contract rights (Materials) as Seller has produced or acquired for the performance of this Contract, including the assignment to Buyer of Seller's subcontracts. Seller further agrees to protect and preserve property in the possession of Seller in which Buyer has an interest. Payment for completed Goods delivered to and accepted by Buyer shall be at the Contract price. Payment for unfinished Goods or services, which have been delivered to and accepted by Buyer and for the protection and preservation of property, shall be at a price determined in the same manner as provided in the Termination for Convenience provision hereof except that Seller shall not be entitled to profit. Buyer may withhold from Seller moneys otherwise due Seller for Goods completed and services performed in such amounts as Buyer determines necessary to protect Buyer against loss due to outstanding liens or claims against said Goods. (c) Seller shall promptly notify Buyer if Seller is the subject of any petition in bankruptcy. In the event of Seller's bankruptcy, Buyer may require Seller to post such financial assurance, as Buyer, in its sole discretion, deems necessary. Failure to post such financial assurance upon 10 days written notice shall constitute a default under this Contract. The rights and remedies of Buyer in this clause are in addition to any other rights and remedies provided by law or under this Contract.
25. Applicable Law; Jurisdiction; Legal Fees: All questions concerning the interpretation, construction, performance, and enforcement of this Contact and remedies in the event of default shall be resolved in accordance with the laws of the state of New York without resort to said state's conflict of law rule, and in accordance with its fair meaning and not strictly against either party based on which party drafted this Contract. Any legal proceeding arising out of the terms of this Contract will be commenced in the courts located in Nassau or Suffolk County, New York. Each of Seller and Buyer irrevocably and unconditionally submits to the exclusive jurisdiction of such courts, waives any objection to the laying of venue of any action, suit or proceeding arising out of this Contract or the transactions contemplated hereby in the State of New York, and waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. The prevailing party in any dispute will be entitled to recover from the losing party its costs (including reasonable costs of collection, attorneys' fees).
26. Disputes: Pending final resolution of a dispute hereunder, Seller shall proceed diligently with the performance of this Contract and in accordance with all the Terms and Conditions contained herein and with Buyer's direction thereof.
27. Compliance with Law: Seller has complied with all applicable federal, state and local laws, regulations and other requirements, including those pertaining to regulatory and environmental matters, in its performance of this Contract.(a) Nu Source Technologies LLC Complies with all applicable provisions of the Electronic Industry Code of Conduct (EICC) http://www.eicc.info/documents/EICCCodeofConductEnglish.pdf and requires that our Suppliers similarly do so.
28. Complete Agreement: The Contract contains the complete and entire agreement between the parties with respect to the subject matter of this Contract, when accepted by acknowledgement, commencement, or performance. It supersedes any other communications, representations or agreements whether verbal or written. This Contract may be accepted only on all the terms and conditions herein stated. No acceptance by Buyer of or payment for Goods ordered hereunder shall be deemed a waiver of the foregoing or an acceptance of any additional or different terms contained in any acknowledgement, invoice, or other form sent or delivered by Seller to Buyer. This Contract shall be deemed a notification of and objection to any inconsistent, additional and/or different terms contained in Seller's invoice or other form and constitutes a rejection thereof.