Terms and Conditions of Sale

1. GENERAL
“Goods” means all products and related services provided by N.F. Smith & Associates, L.P., Smith & Associates Europe B.V., Smith & Associates Far East Ltd., or Smith Global Services Pte. Ltd. (“Seller”) to buyer (“Buyer”). All sales of Goods shall be made only upon these Terms and Conditions of Sale (“Terms and Conditions”) and NOT any purchase order or other document of Buyer. BY ACCEPTING DELIVERY OF GOODS FROM SELLER, BUYER SHALL BE DEEMED TO HAVE CONSENTED TO AND ACCEPTED THESE TERMS AND CONDITIONS, REGARDLESS OF ANY ADDITIONAL OR CONFLICTING TERMS OR CONDITIONS IN ANY PRIOR OR LATER COMMUNICATION FROM BUYER. Seller’s failure to object to any terms which conflict with these Terms and Conditions shall not be deemed a waiver of objection thereto. Any change to these Terms and Conditions must be specifically agreed to in writing by a duly authorized representative of Seller.

2. PRICES
Quotations are subject to Seller’s approval of Buyer’s credit, availability of Goods, and Seller’s confirmation. Unless otherwise noted, prices quoted are in USD and do not include VAT, GST or other taxes. Seller reserves the right to amend the terms of an accepted order to correct errors or omissions or to account for any tariffs, duties, or taxes or other governmental charges imposed or increased on the Goods after Seller’s acceptance of the order.

3. DELIVERY
Delivery dates quoted by Seller are best estimates only and time is expressly not of the essence unless otherwise agreed upon by Seller in writing. Late or partial delivery does not entitle Buyer to cancel its order. Buyer acknowledges that Seller will not be liable for any damages or injury arising from a delay in delivery. In the event of delivery by installments, Buyer is not entitled to treat the delivery of faulty Goods in any one installment as a repudiation of the entire order. Buyer must notify Seller promptly in writing of shortages, non-delivery of Goods or receipt of nonconforming or damaged Goods. Delivery to Buyer occurs when Goods are delivered to Buyer in accordance with the agreed incoterms.

For Goods shipped from the Seller’s facilities in the EU or Singapore: Unless otherwise specifically agreed in writing, all Goods are shipped “FCA” Seller’s designated facility (Incoterms 2020).

For Goods shipped from Seller’s other facilities: All Goods are shipped “EXW” Seller (Incoterm 2020) unless otherwise specifically agreed in writing.

Notwithstanding the Incoterms agreed upon by the parties, Seller shall retain all risk of loss for Goods until delivered to Buyer at Buyer’s facilities. Special instructions with regard to packaging must be expressly provided on the purchase order and agreed to in writing by Seller.

4. WARRANTY AND RETURNS
Except for Consignment Goods and Special Orders, and provided Buyer has given Seller written notification of a defect within 30 days of the date of the invoice, Seller will refund the cost of or, at its discretion, repair or replace any of the Goods found to its satisfaction to be defective, either due to faulty workmanship or prior use. Non-defective Goods are returnable only upon written consent from Seller in its absolute discretion. Goods purchased from Seller may be returned only at Seller’s discretion pursuant to the applicable purchase order and this paragraph, but in any event no later than 30 days from the invoice date, provided that the following conditions are met: 1) Only one Return Material Authorization (RMA) request per invoice; 2) Goods must not be obsolete, Consignment Goods or Special Order; 3) Non-defective Goods must be accompanied by written authorization from Seller and be in resalable condition, meaning: new and unused, in original factory packaging, unopened with all external and internal factory seals intact, with all original parts and accessories (cables, software, documents, manuals, etc.); 4) Defective Goods must be accompanied by a legitimate independent test report confirming the defect; and 5) Goods must be received by Seller within 20 days after an RMA is issued, or they will be returned at Buyer’s expense. RMAs must be obtained from Seller before Buyer returns Goods for any reason, or they will be returned to Buyer at Buyer’s expense, and Buyer will be assessed a 20% restocking charge. Buyer acknowledges and agrees that the charging of such restocking charge is not intended as a forfeiture or penalty within the meaning of any applicable law, but is a genuine pre-estimate of the losses and damage that may be suffered or incurred by Seller as a result of Buyer’s failure to obtain RMAs from Seller pursuant to these Terms and Conditions.  Goods returned to Seller shall become the property of Seller.  ALL CONSIGNMENT GOODS AND SPECIAL ORDERS ARE SOLD “AS IS”, WITH NO EXPRESS OR IMPLIED WARRANTIES FROM SELLER AND WITH NO RETURN RIGHTS.

 
5. DISCLAIMER; LIMITATION OF LIABILITY
Buyer acknowledges that Seller is not the manufacturer of Goods and that Seller shall not be responsible for providing Goods change notices, certificate(s) of origin, material composition, trade preference status, or any other similar information.  To the extent Seller does provide such information, such information is provided on an AS IS basis.  Buyer shall be responsible for confirming the accuracy of said information.  Further, Seller makes no representation concerning patents, trademarks, trade names or service marks (collectively “Patents”) of any of its Goods. Seller’s obligation for Patent infringement is expressly limited to any indemnification which Seller’s vendor of the Goods has agreed in writing to provide (or by operation of law has been deemed to provide) to Seller.  GOODS ARE NOT INTENDED FOR USE IN HIGH-RISK APPLICATIONS INCLUDING MEDICAL LIFE SUPPORT, NUCLEAR POWER, MASS AND AIR TRANSPORTATION CONTROL, OR OTHER POTENTIALLY LIFE CRITICAL USES WHERE THE FAILURE COULD CAUSE PERSONAL INJURY OR DEATH.  Seller makes no assurance or warranties that Goods are suitable for any high risk uses.  Buyer agrees to indemnify, defend and hold Seller harmless from and against any losses, damages, or claims arising out of such use of Goods.

ALL TERMS, CONDITIONS AND WARRANTIES (WHETHER IMPLIED BY STATUTE OR COMMON LAW OR MADE EXPRESSLY) WHETHER BY SELLER OR ITS EMPLOYEES, AGENTS OR OTHERWISE (INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR INTENDED PURPOSES, DESIGN, QUALITY AND/OR CONDITION OF THE GOODS (INCLUDING ANY FIRMWARE EMBEDDED IN THE GOODS)) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF INCOME, PROFITS, DATA, OPPORTUNITY OR GOODWILL), REGARDLESS OF WHETHER OR NOT BASED ON WARRANTY, CONTRACT, TORT, SELLER’S NEGLIGENCE, OR ANY OTHER LEGAL THEORY. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING FROM SELLER’S SUPPLY OF GOODS OR SERVICES TO BUYER EXCEED THE AMOUNT PAID BY BUYER TO SELLER FOR THE SPECIFIC GOODS AT ISSUE.

6. PAYMENT
Payments are due on demand but in any case must be paid without offset or deduction no later than 30 days after invoice date. Interest at the lessor of 10% per annum or the maximum rate permissible by law shall be payable on any amount outstanding after the 30-day period. Buyer acknowledges and agrees that the charging of the interest is not intended as a forfeiture or penalty within the meaning of any applicable law, but is a genuine pre-estimate of the losses and damage that may be suffered or incurred by Seller as a result of Buyer’s failure to pay within the 30-day period.  Buyer shall reimburse Seller for all reasonable legal fees, costs and expenses incurred by Seller during the collection of any sums owed by Buyer.  Notwithstanding anything to the contrary, Seller shall have the right, in its absolute discretion, to apply any payment received from Buyer to offset any indebtedness due from Buyer to Seller, whether it is due pursuant to these Terms and Conditions or any other agreements.

7. OWNERSHIP, SECURITY INTEREST
Buyer agrees that title to all Goods purchased shall be vested in Seller, and all Goods shall remain as Seller’s properties until the corresponding invoice is paid in full to the satisfaction of Seller.  Buyer agrees that Seller shall retain a purchase security interest in all Goods which it has sold to Buyer, and to any proceeds from the disposition of the Goods, until the purchase price and any other charges due to Seller have been paid in full.  Buyer agrees to execute any financial statements or other documents which Seller may request in order to protect Seller’s security interest.  In addition to the rights and remedies granted by these Terms and Conditions, Seller shall have all rights and remedies of a secured party, which rights shall be cumulative.

8. CANCELLATIONS AND RE-SCHEDULES
Requests to cancel or reschedule orders must be agreed to in writing and may or may not be accepted in Seller’s absolute discretion. Without waiving any of its rights, Seller is entitled to recover its costs incurred and profits lost as a result of Buyer’s cancellation or rescheduling of an order.  Seller expressly reserves the right to cancel accepted orders due to unavailability of Goods.

9. EXPORT CONTROL REGULATIONS
Some or all of the Goods supplied by Seller may be subject to export control regulations in the US, EU, Singapore, Hong Kong and /or other countries, excluding boycott laws. Such Goods may not be imported or exported by Buyer without prior approval of the relevant authorities. It is the responsibility of Buyer to obtain such approval. Buyer shall conduct sufficient screening and due diligence to ensure that the transaction does not involve any persons or entity identified as a restricted or denied party pursuant to any embargo, sanction, debarment or denied party designation maintained by any country or government whose laws are applicable to the transaction, to the extent the designation prohibits the transaction.  Buyer shall not sell, export, re-export or transfer any Goods, unless it has authorization to do so under the applicable export control and sanctions laws of the US and the Buyer’s shipping country:  (a) to the Crimea Region, Cuba, Iran, North Korea, Sudan, Syria, the Russian Federation (“Russia”), Belarus or any other country sanctioned or embargoed under U.S. law, or any nationals of such countries; (b) to or for military and military intelligence end uses, military and military intelligence end users restricted under US and EU laws, and (c) for any end use involving the development of support of chemical, biological, nuclear weapons, rocket systems or unmanned air vehicle applications, or missiles capable of delivering such weapons, or weapons of mass destruction.  Buyer further confirms that Seller is a U.S. person and agrees not to cause Seller to facilitate the shipment, transmittal, transfer or servicing of Goods and the related items for prohibited end-uses under the EAR, including but not limited to §734.9, §742.6, §744.23 and §744.6 of the EAR, as may be amended from time to time. Buyer will also comply with the International Labor Organization’s conventions on forced labor.Under no circumstances will Seller be liable for any loss or damage incurred by Buyer as a result of Buyer’s contravention of any export control regulations.

10. FORCE MAJEURE
Seller shall not be liable for its delay or failure to perform its obligations if and to the extent such delay or failure is caused, directly or indirectly, by acts of God, riots, strikes, wars (declared or undeclared), insurrection, rebellions, terrorist acts, civil disturbances, dispositions or orders of governmental authorities, or any other act or cause which is beyond the control of Seller.  In such case, Seller shall provide Buyer prompt written notice  and Seller’s obligations shall be suspended during the continuance of the Force Majeure condition.

11. ENVIRONMENTAL COMPLIANCE
Where applicable, Buyer is responsible for all obligations and liabilities under the European Union’s (i) Waste Electrical and Electronic Equipment Directive (2012/19/EU), (ii) Packaging Waste Directive (94/62/EC) and (iii) Batteries Directive (2006/66/EC), all as amended and all related national implementing measures in force from time to time.

12. NO RUSSIA/NO BELARUS CLAUSE
(a)  Buyer shall not sell, export or re-export, directly or indirectly:

(i)  to Russia or for use in Russia any goods supplied by Seller or under its agreement with Seller that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014, any other provision of the Council Regulation (EU) No 833/2014, or Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast), or in the Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment.

(ii)  to Belarus or for use in Belarus any goods supplied by Seller or under its agreement with Seller that fall under the scope of Article 8g of Council Regulation (EU) No 765/2006 or any other provision of the Council Regulation (EU) No 765/2006, or Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast), or in the Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment.

(b)  Buyer shall undertake best efforts to ensure that the purpose of 12(a) above not be frustrated by any third parties further down the commercial chain, including by possible resellers.

(c) Buyer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of 12 (a) above.  Buyer will notify Seller of any problems in applying 12 (a) and (b) above.

(d)  Any violation of this section 12 shall constitute a material breach of Buyer’s agreement with Seller, and Buyer shall indemnify and hold Seller harmless from any damages arising from such breach, including but not limited to fines, warnings, and damages incurred by third parties.  Seller shall be entitled to seek appropriate remedies, including the termination of Seller’s agreement with Buyer.

13. CONFIDENTIALITY AND PRIVACY
Information supplied by Seller to Buyer and vice versa shall be treated as confidential and shall not be disclosed to third parties or used for any purpose other than performing under these Terms and Conditions.  Notwithstanding the foregoing, such information may be shared if required by law, with the prior written consent of the other party and to affiliates on a need-to-know basis.  Buyer expressly agrees and consents to the processing of Buyer Personal Data pursuant to Seller’s Privacy and Cookies Policy.  Further, Buyer hereby grants to Seller or will obtain on Seller’s behalf, all necessary consents and take all other actions required by applicable legal requirements and local laws (“Data Protection Law”) applicable to Personal Information in order for Seller to process Personal Information that Seller obtains from Buyer to perform activities under these terms and conditions, such as receiving and managing orders and accounts. Personal Information is defined as any information relating to an identified or identifiable individual, and includes all “personal information” or “personal data” as that term is defined by applicable Data Protection Laws.  A copy of this policy can be found at  (https://smithweb.com/privacy-policy/).  Buyer may also request a copy of the Privacy and Cookies Policy by emailing privacy@nfsmith.com.

14. ELECTRONIC ORDERS
If any part of the order with Seller is processed through Buyer’s portal, EDI, or other electronic means, these Terms and Conditions shall still control.  Buyer and Seller agree that electronic signatures may be used in connection with these Terms and Conditions and that electronic signatures (including pdf, facsimile, DocuSign or any other digital signature provider) appearing on these Terms and Conditions, Seller’s NCNR, Customer application or any other agreement shall have the same force and effect as an original signature for the purpose of validity, enforceability or admissibility.

15. LAW
For Goods delivered in the US or provided by N.F. Smith & Associates, L.P., these Terms and Conditions shall be governed by the laws of the state of Texas without giving effect to the principles of conflicts of laws.  All disputes which may arise under these Terms and Conditions shall be determined by the state district court of Harris County, Texas, without prejudice to Seller’s right to bring such dispute before any other competent court.

For Goods delivered outside of the US and provided by Smith & Associates Europe B.V., these Terms and Conditions shall be governed by the laws of the Netherlands without giving effect to the principles of conflicts of laws.  All disputes which may arise under these Terms and Conditions shall be determined by the courts of competent jurisdiction in Amsterdam, Netherlands, without prejudice to Seller’s right to bring such dispute before any other competent court.

For Goods delivered outside of the US and provided by Smith & Associates Far East Ltd. , these Terms and Conditions shall be governed by the laws of Hong Kong without giving effect to the principles of conflicts of laws.  All disputes which may arise under these Terms and Conditions shall be determined by the courts of Hong Kong, without prejudice to Seller’s right to bring such dispute before any other competent court.

For Goods delivered outside of the US and provided by Smith Global Services Pte. Ltd. , these Terms and Conditions shall be governed by the laws of Singapore without giving effect to the principles of conflicts of laws.  All disputes which may arise under these Terms and Conditions shall be determined by the courts of Singapore, without prejudice to Seller’s right to bring such dispute before any other competent court.

In all cases, applicability of the UN Convention on the International Sale of Goods of 1980 (Weens Koopverdrag 1980 (CISG)) is hereby excluded.  Neither Buyer or Seller shall claim lack of personal jurisdiction or forum non conveniens in the courts.  In an action or suit, the prevailing party shall be entitled to recover costs, including reasonable attorneys’ fees.  Before any court action or any proceeding is filed by either party involved in this transaction, the parties will endeavor to resolve the matter in mediation which will last a minimum of 4 hours. The parties shall equally bear the cost of the mediator. In the event that any of these Terms and Conditions is determined to be unenforceable, the other Terms and Conditions shall remain in full force and effect. Failure of Seller to enforce at any time any of the Terms and Conditions shall not be deemed a waiver of any of Seller’s rights and shall not affect the validity of the sale or these Terms and Conditions.