1. PLEASE READ THESE TERMS AND CONDITIONS OF SALE (THIS “AGREEMENT”) CAREFULLY.
PLEASE READ THESE TERMS AND CONDITIONS OF SALE (THIS “AGREEMENT”) CAREFULLY. IT CONTAINS THE SOLE TERMS AND CONDITIONS OF SALE THAT APPLY TO THE PURCHASE OF PRODUCTS (INCLUDING SOFTWARE) FROM NEWARK CORPORATION d/b/a/ Newark element14 (THE “COMPANY"). THE COMPANY MAY CHANGE OR MODIFY THESE TERMS AND CONDITIONS OF SALE FROM TIME TO TIME WITHOUT NOTICE. THE MOST UPDATED TERMS AND CONDITIONS WILL BE AVAILABLE AT http://www.newark.com/terms-and-conditions. ANY DIFFERENT OR ADDITIONAL TERMS SET FORTH IN CUSTOMER’S PURCHASE ORDER OR SIMILAR COMMUNICATION ARE OBJECTED TO AND SHALL NOT BE BINDING ON THE COMPANY UNLESS A SEPARATE AGREEMENT HAS BEEN SIGNED BY AN AUTHORIZED OFFICER OF THE COMPANY. BY PLACING AN ORDER FOR PRODUCTS FROM THE COMPANY, OR BY ACCEPTING DELIVERY OF THE PRODUCTS DESCRIBED ON THE APPLICABLE PACKING SLIP, BILL OF LADING AND/OR INVOICE RECEIVED WITH THE PRODUCTS, CUSTOMER AGREES TO BE BOUND BY AND ACCEPT THE MOST UPDATED VERSION OF THESE TERMS AND CONDITIONS OF SALE UNLESS CUSTOMER AND COMPANY HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS AND RESULTS THEREOF POSTED ON ANY COMPANY SITE OR CATALOG DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN COMPANY AND CUSTOMER.
Customer may order software from or through Company. Software may be provided by third parties, including support and maintenance related thereto. All such software and related services are offered by Company as a distributor or sales agent. The software is provided under the terms of the license attached to it or linked thereto, such as any shrink-wrap end user license agreement contained within the packaging of any software or the click-wrap or web-wrap end user license agreement (“EULA”) and is between Customer and such third party licensor. Customer is required to accept the EULA before downloading any software or before using any software delivered on physical media. If no such EULA is attached, the software is provided “AS IS.” Customer agrees to comply with the terms of such EULA with respect to the software. With respect to such software, Customer shall consider the third party to be the contracting party and such terms shall only be between Customer and such third party. Customer shall solely look to such third party with respect to such software. The Company is not liable for any losses or damages which may occur from the use of any such software and the Customer hereby releases Company from any and all claims arising from or related to the purchase or provision of such software. Notwithstanding the terms herein, software is licensed, and not sold. BY PLACING AN ORDER FOR SOFTWARE, CUSTOMER AGREES TO USE SUCH SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE APPLICABLE EULA FOR THAT SOFTWARE.
2. BUSINESS CUSTOMERS:
The Company is a business to business supplier. Its catalog and any specialogs and other product brochures produced by the Company are intended for use by business customers and not consumers. By ordering, the Customer represents and warrants that Customer is acquiring the products on behalf of a business and not as a consumer.
3. PRODUCT AVAILABILITY AND PRICING:
Product listings, specifications, availability, and pricing are subject to change without notice. Orders are not binding upon the Company until accepted by an authorized representative of the Company. Prices listed and charges discussed herein are in U.S. dollars. Some products may not be available for shipment outside the United States. The Company reserves the right to refuse service, terminate accounts or cancel orders in its sole discretion. If ordering from the Company’s catalog, the prices shown therein reflect the latest information available at the time of the printing of the catalog or uploading of an electronic catalog. Customers using electronic catalogs agree to immediately upload updated versions upon receipt from Company. Prices charged will be those prevailing when an order is placed regardless of method of order. Orders for products are sometimes accepted by the Company by dispatching the products provided, however, that dispatch will not be acceptance where the price for the products has been incorrectly quoted or referenced by the Customer in its order and the pricing error could have reasonably been recognized by the Customer as a mispricing. For scheduled deliveries over 60 days, the Company reserves the right to charge the Customer the price of the products at shipment if higher. The Company’s quoted prices do not reflect the cost of accommodating Customer’s purchases via credit card or any third-party procurement services, software or ecommerce providers and the Company may accordingly pass through the additional charges incurred as a result of Customer’s use of such purchasing methods. Prices shown do not include any Federal, State or local taxes or any present or future sales, use, excise, value-added or similar taxes. Where applicable, such taxes shall be billed as a separate item and paid by Customer. Orders are accepted with the understanding that such taxes will be added, as required by law. The Company charges local sales tax unless Customer has a valid sales tax exemption certificate on file with the Company. Selected products containing precious metals are subject to a surcharge.
4. PAYMENT TERMS:
Standard terms for Customers that are registered businesses and meet the Company’s credit criteria are Net 30 days from invoice date, unless otherwise agreed in writing by the Company or as may be stated in the product description, such as with respect to software downloads. All payments are due within 30 days of the invoice date, without any deductions or setoffs.
In the case of any software provided by the Company electronically for download by the Customer, following receipt of payment in cleared funds in full by the Company (or following the Customer’s purchase of any software pursuant to the terms of an existing credit agreement between the Customer and the Company), and subject to the Company’s completion of any necessary credit, anti-fraud or compliance checks or procedures, the Company will send to the Customer’s email address (as specified by the Customer at the time the Order was placed) an email containing (i) a hyperlink by which the software can be accessed and (ii) instructions enabling the Customer to activate the Software.
Invoices will be sent electronically to the email address provided during the account application process. This can be changed or a printed invoice requested by contacting the Accounts Receivable department (contact details can be found on the invoice). If a printed invoice or copy thereof is required, Company reserves the right to charge $1.00 per copy plus applicable postage and handling fees.
Notwithstanding the above, the Company reserves the right to request payment in advance or otherwise in accordance with the payment terms specified by the Company, in writing. The Company shall have the right of set off and deduction for any sums owed. If Customer fails to pay by the due date, the Company may defer shipments until such payment is made and may, at its option, cancel all or any part of unshipped orders. The Company reserves the right to add a $20.00 service charge on all returned checks. Customer shall pay the Company all costs incurred by it in collecting any past due amount from Customer, including all court costs and attorney’s fees, provided, however, if the foregoing charges exceed that rate which may be lawfully charged under applicable law, then such charges shall be calculated so as not to exceed the lawful rate. Company may also charge interest (both before and after any judgment) on the amount unpaid at the rate of 5% per annum above the base rate as published in the Wall Street Journal from the due date of payment until payment is made.
5. NEW ACCOUNTS/CUSTOMER'S FINANCIAL CONDITION:
A Customer that desires to open a credit account must furnish such information as requested by the Company. The Company reserves the right in its absolute discretion to grant, refuse or discontinue any extensions of credit, or reduce or suspend any credit limit at any time. Company also reserves the right to cancel any order, require payment in advance, or require the Customer to provide adequate assurance of performance, without any liability by the Company, in the event of the Customer’s insolvency, filing of a petition in bankruptcy, the appointment of a receiver or trustee for Customer, or the execution by Customer of an assignment for the benefit of creditors.
6. CREDIT CARDS:
We accept credit and procurement cards from American Express®, MasterCard®, VISA®, Discover® and Government purchase cards. A surcharge may be assessed for Customers who pay past due invoices by credit card.
Returning product to the Company is easy. Please follow the simple procedures below to return product for replacement product or for a credit to Customer’s account, at Customer’s option:
Please call Customer’s Customer Service Representative to obtain a Return Merchandise Authorization number (RMA) prior to returning product. Sorry, Company cannot accept any product returns without a RMA. For all non warranty related returns:
Returns must be made within 60 days of the original invoice date;
“Not In Catalog Items" and all products specified as "Non-Cancelable/Non-Returnable" (NC/NR) are not returnable;
Software may only be returned in the original, unopened packaging within 14 days of the original invoice date. If the software is defective and the packaging is opened, it may only be exchanged for the identical title within such 14 days. Software downloads are not returnable; and
Return freight charge must be prepaid. C.O.D. returns cannot be accepted.
To reduce the risk of counterfeit product entering the supply chain:
Only product originally shipped by Company to Customer is eligible for return. By returning product to Company, Customer confirms that it acquired such product from Company; and
All returned product must be in the original, unopened packaging and in resalable condition.
Warranty related return procedures will be determined by the manufacturer’s warranty policy for the applicable product. Please review the documentation provided with the purchase, included with the product, or as may be available online from the manufacturer. In addition, Customer may contact their Customer Service Representative who may direct Customer to the applicable manufacturer for further details.
8. INTERNATIONAL ORDERS:
Export orders requiring special handling, packaging, and documentation are subject to additional charges. Export orders are accepted on the basis of payment in advance of shipment by a check in U.S. funds, wire transfer, international money order or credit card. Prices are FCA Company Warehouse in accordance with Incoterms 2010 and do not include insurance, freight, brokerage, duty or taxes.
9. EXPORT CONTROLS:
Products purchased or received under this Agreement are subject to export control laws, restrictions, regulations and orders of the United States. Customer agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities, and shall not directly or indirectly export, or transfer for the purpose of re¬export, any product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any such United States or foreign law or regulation. Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals, Entity, Unverified or Debarred Lists and is not otherwise prohibited by law from purchasing the products or services hereunder. The Company reserves the right not to supply certain customers or countries and to require from Customer full details of the end use and final destination of the products. Customer shall be responsible to obtain any license to export, re¬export or import as may be required. The Company provides no assurances or warranties for any export classifications provided to Customer, such as Export Control Classification Numbers or Harmonized Tariff Codes. Export classifications are subject to change, and Customer, if exporting on its own behalf, is responsible for determining the correct classification of any item at the time of export.
10. SHIPPING & HANDLING/DELIVERY:
All U.S. domestic shipments are FCA Shipping Point in accordance with Incoterms 2010 and in all cases title, with the exception of software, shall pass upon delivery to the carrier at point of shipment and thereafter all risk of loss or damage shall be upon Customer (without regard to which party pays for the shipping costs). Title to software shall remain with the applicable licensor(s), and Customer’s rights therein are contained in the EULA between Customer and such licensor(s). Company and carrier handling charges apply. Next Day and Second Day Air Service is available within the 48 contiguous states, Alaska, Hawaii, and Puerto Rico. Delivery dates provided in advance are estimates only and shall not represent fixed or guaranteed delivery dates. Export shipments are on the basis of FCA Company Warehouse in accordance with Incoterms 2010, with the Company charging separately for the costs, insurance, and freight to bring the products to the named place of destination.
In the event that the Company sends promotional material to the Customer in relation to products available from the Company, this Agreement shall apply to all products purchased from such material.
12. AGE REQUIREMENTS FOR CERTAIN PRODUCTS:
Where the law requires a minimum age for the purchase of certain products, the Customer confirms that he or she is over the required age and that delivery of the products will be accepted by a person over the applicable age limit.
13. HAZARDOUS APPLICATIONS PROHIBITED:
THE COMPANY’S PRODUCTS ARE NOT DESIGNED, RECOMMENDED OR AUTHORIZED FOR ANY OF THE FOLLOWING APPLICATIONS: HIGH-RISK APPLICATIONS SUCH AS SAFETY, LIFE SUPPORT, SURGICAL IMPLANT, NUCLEAR, OR AIRCRAFT APPLICATIONS, OR FOR ANY USE OR APPLICATION IN WHICH THE FAILURE OF A SINGLE COMPONENT COULD CAUSE SUBSTANTIAL HARM TO PERSONS OR CATASTROPHIC PROPERTY LOSS; OR FOR ANY MILITARY OR WEAPONRY USE, INCLUDING BUT NOT LIMITED TO CHEMICAL, NUCLEAR, BIOLOGICAL, AIRCRAFT, MISSILE, AND SIMILAR MILITARY APPLICATIONS. UNLESS AN AUTHORIZED OFFICER OF THE MANUFACTURER HAS AUTHORIZED OR APPROVED ANY SUCH USE(S) IN WRITING, OR ALTERNATIVELY HAS PROVIDED CUSTOMER WITH A DOCUMENT SIGNED BY AN AUTHORIZED OFFICER WAIVING CUSTOMER’S RESPONSIBILITY FOR ANY SUCH USE, CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR USE OF COMPANY’S PRODUCTS IN ANY SUCH APPLICATIONS AND AGREES TO DEFEND, INDEMNIFY AND HOLD BOTH THE COMPANY AND THE MANUFACTURER OF THE PRODUCTS HARMLESS AGAINST ALL LOSSES, LIABILITIES, CLAIMS AND DAMAGES THAT MAY BE INCURRED DUE TO USE OF THE COMPANY’S PRODUCTS IN ANY OF THESE PROHIBITED APPLICATIONS.
14. WARRANTY & LIMITATION OF LIABILITY:
Products are sold by the Company with such warranties as may be extended by the manufacturer of the product(s), and there are no warranties for value added services, services bundled with the products, or other services provided by the Company. COPIES OF THE MANUFACTURERS’ WARRANTIES ARE AVAILABLE PRIOR TO THE PURCHASE OF PRODUCTS BY CONTACTING THE COMPANY. THE COMPANY MAKES NO OTHER WARRANTIES AND ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. CUSTOMER IS RESPONSIBLE FOR INSTALLATION AND USE IN ACCORDANCE WITH MANUFACTURERS’ INSTRUCTIONS AND THE COMPANY SHALL NOT BE RESPONSIBLE FOR CUSTOMER’S IMPROPER SELECTION OF A PRODUCT FOR A PARTICULAR APPLICATION OR OTHERWISE. No warranty will apply if the products are in any way altered or modified after delivery by the Company.
WITH RESPECT TO ANY SOFTWARE AND OTHER PRODUCTS MADE AVAILABLE, CUSTOMER ACKNOWLEDGES AND AGREE THAT THE COMPANY IS NOT THE MANUFACTURER THEREOF AND THE ONLY WARRANTIES OFFERED ARE THOSE OF THE MANUFACTURER, NOT THE COMPANY. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER'S WARRANTY. In purchasing the software, Customer is relying on the manufacturer’s or licensor’s specifications only and is not relying on any Descriptions (as defined below) representing the software that may be provided by Company. Support and/or maintenance, if any, for such software shall be provided by the manufacturer or licensor, unless the Company expressly agrees to provide such support and/or maintenance in the software purchase order.
Customer further hereby expressly waives any claim that it may have against Company based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights with respect to any such software product. In addition, Customer hereby also waives any right to indemnification from Company against any such claim made against Customer by a third party.
Customer acknowledges and agrees that no Company employee is authorized to make any representation or warranty on behalf of Company that is not in this Agreement.
THE COMPANY’S LIABILITY ON ANY CLAIM FOR LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT OR FROM THE PERFORMANCE OR BREACH OF THIS AGREEMENT OR CONNECTED IN ANY MANNER WITH THE SUPPLYING OF ANY PRODUCTS OR SERVICES HEREUNDER, OR THE SALE, RESALE, OPERATION OR USE ALLOCABLE TO SUCH PRODUCTS OR PART THEREOF INVOLVED IN THE CLAIM, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND FOR PROPERTY DAMAGE AND DEATH) OR OTHER GROUNDS, SHALL NOT IN ANY EVENT EXCEED THE PRICE ALLOCABLE TO SUCH PRODUCTS OR PART THEREOF INVOLVED IN THE CLAIM, REGARDLESS OF CAUSE OR FAULT. IN NO EVENT SHALL THE COMPANY BE RESPONSIBLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUES, SALES, DATA, BUSINESS, GOODWILL OR USE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THAT WITHOUT THIS LIMITATION OF LIABILITY THE COMPANY WOULD NOT HAVE AGREED TO THE PRICE OR TERMS AND CONDITIONS OF THIS AGREEMENT. THE LIMITATION OF LIABILITY SET FORTH HEREIN APPLIES BOTH TO PRODUCTS AND SERVICES PURCHASED OR OTHERWISE PROVIDED HEREUNDER. Any cause of action against the Company must be instituted within 1 year from the date of purchase or provision of the products or services.
If the Company provides Customer with advice, training, applications support, or other assistance which concern any products supplied hereunder, or any equipment, system or the like in which the product may be installed, the Company’s giving of such advice or assistance will not subject the Company to any liability, whether based on contract, warranty, tort (including negligence) or other grounds. In order to maintain quality Customer service, the Company may monitor or record telephone calls and other communications.
All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions or capacity and other details including, without limitation, statements regarding compliance with legislation or regulation (together "Descriptions") wherever they appear (including, without limitation, in catalogs, on web sites, on dispatch notes, invoices or packaging) are intended to give a general idea of the products, but will not form part of this Agreement. If the Descriptions of any products differ from the manufacturers' description, the latter shall be deemed to be correct. The Company relies on such information, if any, as may have been provided to it by the manufacturers of the products and accepts no liability in contract or tort, or under statute, regulation or otherwise for any error in or omission from such Descriptions whether caused by the Company's negligence or otherwise. The Company may make changes to the products as part of a program of improvement or to comply with legislation. Where the product is flagged as RoHS compliant or where the , for updated information and a current listing of RoHS compliant product. The information contained on our website supersedes the information contained in any Company printed catalog or other publication. or is used, this means that, based on information provided by our suppliers, the product does not contain the substances restricted by the European Community Directive (2002/95/EC) on the Restriction of the use of certain Hazardous Substances, commonly known as the RoHS Directive, at levels in excess of the anticipated maximum concentration values or the existence of the restricted substances in the product at levels in excess of those concentrations is allowed as one of the particular applications listed in the Annex to the RoHS Directive. RoHS Compliant Available means that those products, within a product family, which are marked with a are RoHS Compliant. This information is of a general nature and is not intended to address the circumstances of any particular individual or entity. No one should act on such information without appropriate professional advice. Please see our website, www.newark.com
16. INTELLECTUAL PROPERTY RIGHTS:
The products offered for sale by the Company may be subject to patent, trademark, copyright, design and other rights of third parties. The Company shall in no event whatsoever be responsible or liable in the event of any claim of infringement of any such rights.
The Company’s entire catalog(s) and website(s), including without limitation, the content of the catalog(s) and website(s) is copyrighted as a collective work under United States laws and applicable international copyright laws and the Company owns the full copyright in its catalog(s) and website(s), including without limitation in the selection, coordination, arrangement and enhancement of the content contained therein. Except as stated below, none of the materials in the Company’s catalog(s) or on its website(s) may be reproduced, distributed, republished, downloaded, copied in any form or by any means, displayed, posted, transmitted, modified, translated, added to, updated, compiled, or abridged without the prior written permission of the Company. Customer may download, store, print and copy selected portions of the content in the Company’s catalog(s) and website(s) provided Customer: (a) only uses the content downloaded, stored, or printed for furthering Customer’s business with the Company; (b) does not publish or post any part of the content from the catalog(s) or website(s) in any other catalog or on any other Internet site; (c) does not publish or broadcast any part of the content from the catalog(s) or website(s) in or on any other media; and (d) does not modify or alter the content from the catalog(s) or website(s) in any way or delete or modify any copyright or trademark notice.
The Company agrees only to be subject to the “mandatory flow down” provisions found in FAR Section 52.244-6. The Company does not agree to be subject to any DFAR.
The Company shall not be liable for loss or damage caused by any delay or failure to perform resulting in whole or in part from Acts of God, severe weather conditions, labor disruptions, governmental decrees or controls, insurrections, war, terrorist attack, risks, shortages, inability to procure or ship product or obtain permits and licenses, insolvency or other inability to perform by the manufacturer, delay in transportation, any other commercial impracticability and/or any circumstances beyond the control of the Company in its business operations.
20. GOVERNING LAW:
This Agreement and any sales hereunder shall be governed by the laws of the State of Illinois without regard to conflicts of law rules and venue shall be in the federal and state courts of Cook County, State of Illinois, United States of America. The parties expressly exclude the application of the 1980 United Nations Convention of Contracts for the International Sales of Goods, if otherwise applicable.
21. DISPUTE RESOLUTION:
ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN COOK COUNTY, ILLINOIS, AND CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMIT TO THE JURISDICTION THEREOF AND WAIVE THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. The rights and remedies provided Company under this Agreement are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, such provision(s) shall be enforced to the fullest extent permitted by applicable law, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The Company’s failure to insist on performance of any term or condition contained in this Agreement, or failure to exercise any of the Company’s rights hereunder, shall not constitute a waiver of any of the Company’s rights or remedies under this Agreement.
24. NO THIRD PARTY BENEFIT:
The provisions set forth in this Agreement are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
The Company shall be entitled, without the consent of or notice to the Customer, to assign or subcontract any of its obligations or rights hereunder, including with respect to the sale of products or the right to receive payment. Customer may not assign this Agreement, or any of Customer’s rights or obligations herein without the prior written consent of Company. This Agreement shall be binding on and inure to the benefit of all such permitted successors and assigns. The relationship between the parties is that of independent contractors and not that of employer/employee, partnership or joint venture. Notices provided under this Agreement shall be in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or one (1) day after such notice is sent by personal delivery or facsimile transmission.