|NORTEK SECURITY & CONTROL LLC – TERMS AND CONDITIONS OF SALE|
|These Terms and Conditions of Sale (“Agreement”) govern in all respects any purchases of Products (“Products”) by the purchaser identified on any quotation or order acknowledgement form (“Buyer”) from Nortek Security & Control LLC (“NSC”).
1. Prices and Taxes. Prices are those in effect when NSC accepts a purchase order. NSC may accept or reject purchase orders in its sole discretion. Buyer must pay or promptly reimburse NSC for any sales, use or any other local, state, provincial or federal taxes arising from the sale or delivery of the Products or provide an exemption certificate. All prices, models, and material specifications are subject to change or withdrawal by NSC without notice.
2. Payment. Upon approved credit, terms of payment are net 30 days from date of invoice. Buyer must pay all amounts by wire transfer or ACH to the account designated by NSC. All prices are quoted, and must be paid, in United States dollars, unless otherwise specified by NSC. If Buyer fails to make any payment or pay any invoice according to its terms, or upon such credit terms as expressly agreed to in writing by NSC, then, in addition to all other rights and remedies available to NSC: (a) NSC has the right to terminate the Agreement or suspend further performance under the Agreement and other agreements with Buyer; and (b) Buyer shall be liable to NSC for all reasonable costs of collection, including reasonable attorneys’ fees and expenses. Past due amounts are subject to service charges of 1.5% per month (or the maximum amount permitted by Law) and, if credit terms have been agreed to in writing, NSC reserves the right to charge Lawful rates of interest upon any outstanding balance, whether past due or not. Buyer hereby agrees that NSC shall have the right to offset any outstanding amounts owed by NSC or its affiliates to Buyer or its affiliates against whatever Buyer then owes to NSC.
3. Changes. NSC may revise prices, dates of delivery, and warranties upon acceptance of requests by Buyer for modifications to Products.
4. Shipment and Delivery. The applicable shipping term for each transaction for Products between NSC and Buyer is as indicated on the order acknowledgment form. The respective liabilities, tax obligations, transfer of title, and risk of loss conform to Incoterms 2020 rules.
Title to any software provided with Products remains with NSC or its supplier. Any claims for shortages or damages suffered in transit must be submitted directly to the carrier. All shipping dates are approximate and not guaranteed. NSC reserves the right to make partial shipments. NSC is not bound to tender delivery of any Products for which Buyer has not provided shipping instructions. If shipment of Products is postponed or delayed by Buyer for any reason, including a Force Majeure Event (defined in Section 9), NSC may move Products to storage for the account of and at the risk of Buyer and the Products will be deemed delivered. Products may not be returned except with the prior written consent of NSC, which may include additional terms.
5. Inspection and Acceptance. Any claims for non-conforming shipments must be made in writing to NSC within five (5) business days after the date the impacted shipment arrives at Buyer’s designated destination. Claims not made within such period shall be deemed waived and released. NSC may inspect the non-conforming shipment and if NSC agrees that the shipment is non-conforming, NSC shall, at its option and at no additional expense to Buyer, repair, replace, or supplement the non-conforming shipment.
6. Limited Warranty. NSC warranty information for the Products is available by accessing the following link, incorporated be reference herein: https://nortekcontrol.com/wp-content/uploads/2018/04/NSC_Warranty_050120181.pdf
7. Limitation of Remedy and Liability. IN NO EVENT SHALL NSC’S AGGREGATE LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID FOR THE PRODUCTS OR UNITS HEREUNDER DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY. NSC SHALL NOT BE LIABLE FOR INTEREST CHARGES OR PENALTIES OF ANY DESCRIPTION, OR FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF ANTICIPATED PROFITS OR BUSINESS INTERRUPTION FOR ANY REASON. NO LAWSUIT MAY BE BROUGHT AGAINST NSC ON ACCOUNT OF ANY BREACH BY NSC UNLESS THE SUIT IS INSTITUTED WITHIN TWO (2) YEARS OF THE DATE OF THE BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGE, LOSS, OR LIABILITY FROM INTENTIONAL ACTS (INCLUDING FRAUD, FRAUDULENT MISREPRESENTATION, AND FAILURE TO DISCLOSE DEFECTS), PRODUCT LIABILITY, OR FOR DEATH OR PERSONAL INJURY. NOTHING IN THIS SECTION WILL BE INTERPRETED AS EXCLUDING LIABILITY THAT CANNOT UNDER APPLICABLE LAW BE EXCLUDED IN THOSE JURISDICTIONS. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. EACH PARTY ACKNOWLEDGES AND AGREES THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATIONS OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
8. Indemnity. Buyer shall defend, indemnify, and hold harmless NSC, its affiliates and their officers, employees, and agents against all claims, damages, liability, losses, fines, or judgments, including without limitation costs, reasonable attorneys’ fees and expenses, and other expenses, relating to or arising out of (a) Buyer’s breach of the Agreement; (b) death or injuries to persons or property due to Buyer’s breach of the Agreement; (c) Buyer’s failure to comply with all applicable Laws, rules, orders, regulations relating to or affecting this Agreement, or (d) infringement of a third party’s intellectual property rights by Buyers use or sale of any Products.
9. Excuse of Performance. NSC has no liability for non-performance beyond its reasonable control due to, including without limitation: acts of God; acts of Buyer; war (declared or undeclared); terrorism or other criminal conduct; fire; flood; weather; sabotage; pandemics; strikes or labor or civil disturbances; governmental requests, restrictions, Laws, regulations, orders, omissions or actions; unavailability of, or delays in, utilities or transportation; default of suppliers or other inability to obtain necessary materials; or embargoes (each, a “Force Majeure Event“). Deliveries or other performance may be suspended for an appropriate period of time or canceled by NSC upon notice to Buyer in the event of a Force Majeure Event, but the remainder of the Agreement will otherwise remain unaffected as a result of the Force Majeure Event. If NSC determines that the total demand for Products is hindered, limited, or made impracticable due to a Force Majeure Event, NSC may delay delivery of Products and allocate its available supply of Products (without obligation to acquire other supplies of any such Products) among its customers on such basis as NSC, in its sole discretion, determines to be equitable without liability for any failure of performance. In the event of a Force Majeure Event, the date of delivery will be extended by a period equal to the delay plus a reasonable time to resume production.
10. Laws and Regulations. Compliance with any federal, state, provincial or local laws, regulations and directives (“Laws“) relating to the installation, operation, or use of Products is the sole responsibility of Buyer. In addition, Buyer shall comply with all applicable Laws, rules, regulations and orders related to anti-bribery, anti-corruption, anti-slavery and human trafficking legislation (including without limitation the United Kingdom Bribery Act 2010 (UKBA), the US Foreign Corrupt Practices Act 1977 (as amended) (FCPA), or any other applicable national, state, provincial or territorial anti-bribery or anti-corruption law or statutes) and, as such, will make no offer, payment, or gift, will not promise to pay or give, and will not authorize, directly or indirectly, the promise or payment of, any money or anything of value to any government official, any political party or its officials, or any person while knowing or having reason to know that all or a portion of such money or item of value will be offered, given, or promised for the purpose of influencing any decision or act to assist NSC or Buyer or otherwise obtaining any improper advantage or benefit. Products do not contain any Hazardous Substances or any components containing Hazardous Substances. “Hazardous Substances”; for the purposes of this Agreement, means any pollutants, contaminants, pesticides, solid, special or toxic wastes, asbestos-containing materials, mold, lead-based paint, solid, liquid, gas or electromagnetic radiation, petroleum or petroleum product or by-product, or hazardous, extremely hazardous, toxic, infectious or radioactive substances, chemicals, materials or wastes defined in or listed as such in, or regulated, limited or prohibited under, any environmental law, including asbestos, polychlorinated biphenyls and substances referenced in Proposition 65 in California. The Agreement is governed by and interpreted according to the Laws of the State of California, without regard to conflicts of law. Each party disclaims the applicability of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement. Any disputes arising from this Agreement shall be brought in a state or federal court located in San Diego County, California, and the parties hereby irrevocably consent to the exclusive jurisdiction and venue of the federal and state courts of San Diego, California.
11. Drawings. Any designs, manufacturing drawings, or other information submitted to Buyer remain the exclusive property of NSC. Buyer shall not, without NSC’s prior written consent, copy such information or disclose such information to a third party.
11. NSC Intellectual Property. Buyer acknowledges and agrees that, except as expressly granted herein, NSC owns all right, title and interest in and to any NSC names, logos, trademarks, trade dress, service marks, designs, marks, domain names, patents, copyrights or copyrighted material, trade secrets, or other intellectual or proprietary property associated with the Products (“NSC Intellectual Property”). For the term of this Agreement, NSC grants Buyer a limited, revocable, non-transferrable, non-exclusive, license to use, sell, offer for sale, import, distribute, and market the NSC Intellectual Property solely to perform Buyer’s obligations under this Agreement, and for no other purpose. Buyer’s use of the NSC Intellectual Property shall follow good trademark and copyright practices, including protecting the value of the goodwill associated with the NSC Intellectual Property. Each initial use of the NSC Intellectual Property by Buyer shall be subject to NSC’s prior written approval. Buyer shall not modify or create any derivative works of any NSC Intellectual Property.
a. Software License. If Buyer has access to services or software as a service (e.g., a subscription) in connection with the Products, the terms of any such software shall be set forth in a subscription agreement to be entered into by NSC (or third party) and Buyer in connection therewith. All services and software are subscription based, and any rights to access such services is limited and expires upon the expiration of the applicable order or upon failure to pay for such services.
13. Cancellation. Buyer may cancel orders only upon reasonable advance written notice and upon payment to NSC of cancellation charges which include without limitation: (a) all costs and expenses directly incurred by NSC, including without limitation stopping delivery, transportation, storage fees, and return or resale costs, (b) if such products are unique to Buyer, costs related to works in progress and components ordered or otherwise used in connection with such cancelled order, and (c) a fixed sum of 10% of the total price of Products to compensate for disruption in scheduling, planned production, and other indirect and administrative costs. NSC, in its sole discretion, may cancel or delay shipment of any orders without liability to Buyer with respect to such cancellation.
14. Export Control. Certain Products may be subject to export controls under the Laws of the United States and other countries. Buyer must comply with all such Laws and not export, re-export or transfer, directly or indirectly, any such Product except in compliance with such Laws.
15. No Internet Sales. EXCEPT AS SET FORTH BELOW, BUYER IS SPECIFICALLY PROHIBITED FROM RESELLING THE PRODUCTS VIA THE INTERNET OR TO ANY PERSON OR ENTITY WHOM BUYER HAS REASON TO BELIEVE (INCLUDING WITHOUT LIMITATION BY NOTICE FROM NSC) MAY OFFER THE PRODUCTS FOR RESALE VIA THE INTERNET. Buyer shall ensure that its customers agree to substantially the same restrictions and obligations as set forth herein. The foregoing shall not prohibit Buyer from selling Products to dealers that use the Internet and other technologies to make consumers aware of the Products, or to promote the availability of such Products from such dealers, provided that such dealers do not offer prices, offer for sale, or take orders for the Products via the Internet. Buyer acknowledges and agrees that violation of the foregoing may subject Buyer to immediate termination. Buyer shall ensure that such permitted Internet activities accurately depict the Products and their features, and are up-to-date at all times. Notwithstanding the foregoing, Buyer shall be permitted to use the Internet to sell Products only via a secured, password protected trade website, provided that such website is available only to its known dealers and not to the general public or consumers. Buyer shall ensure to record and preserve contact information of its customers purchasing Products through its secured website. All Product images, specifications and descriptions not provided by NSC shall be subject to Company’s approval prior to their use in connection with such permitted Internet activities.
16. General Provisions. The Agreement constitutes the entire agreement between the parties and supersedes all other communications between the parties relating to the subject matter of the Agreement. Buyer acknowledges any terms or conditions in the hyperlink are incorporated in the Agreement by reference and that it is Buyer’s responsibility to review the content of the hyperlinks referenced in the Agreement. NSC’s quotations are offers that may only be accepted in full. No conditions, usage or trade, course of dealing or performance, understanding, or agreement purporting to modify, vary, explain, reject, or supplement the Agreement shall be binding unless made in writing and signed by both parties, expressly and specifically referencing this Agreement. Any terms and conditions in any receipt, acknowledgment, or acceptance by Buyer, other than to express type and quantity of Product ordered, including without limitation in any Buyer purchase order, shipping instruction form, or other documentation, are void and without effect. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver is expressed in a writing signed by both parties, specifically referencing this Agreement. Nothing in this Agreement confers upon any person other than NSC and Buyer any right or remedy under or by reason of this Agreement. All typographical or clerical errors made by NSC in any quotation, acknowledgment, or publication are subject to correction. NSC’s sale of Products to Buyer hereunder is hereby expressly made conditional on the terms and conditions of this Agreement to the exclusion of all other terms and conditions. If Buyer disagrees with the Agreement, Product may be returned in accordance with the Return Product Authorization (RA) process as set forth in https://nortekcontrol.com/wp-content/uploads/2018/04/NSC_Warranty_050120181.pdf
16. For any mesh RF products, the following applies: USE OF THESE PRODUCTS IN COMBINATION WITH NON-NORTEK SECURITY & CONTROL LLC PRODUCTS IN A WIRELESS MESH NETWORK OR TO ACCESS, MONITOR OR CONTROL DEVICES IN A WIRELESS MESH NETWORK VIA THE INTERNET OR ANOTHER EXTERNAL WIDE AREA NETWORK, MAY REQUIRE A SEPARATE LICENSE FROM SIPCO, LLC OR IPCO, LLC. FOR MORE INFORMATION, CONTACT SIPCO, LLC OR IPCO, LLC AT 8215 ROSWELL RD., BUILDING 900, SUITE 950, ATLANTA, GA 30350, OR AT WWW.SIPCOLLC.COM OR WWW.INTUSIQ.COM.
Last revised on September 16, 2020