1.0 DEFINITIONS: TERMS AND CONDITIONS
1.1 “NCS” refers to NCS Technologies, Inc., a Virginia corporation. The “Buyer” or “Purchaser” refers to any person, company, or entity ordering goods or products from NCS and to whom NCS has agreed to sell or provide such goods or services.
1.2 The “goods” or “products” are the items identified in NCS’ acknowledgment, typically specified by part number or description. An “acknowledgment” is the document or communication sent by NCS in response to a Buyer’s order confirming acceptance and indicating intent to ship.
1.3 These Standard Terms and Conditions of Sale (“Terms and Conditions”, “Sale Agreement” or “Agreement”) constitutes the entire agreement between NCS and the Buyer and supersedes any conflicting terms in Buyer’s purchase orders or other forms. All sales are expressly conditioned upon the Buyer’s acceptance of all these terms and conditions set forth herein. Any additional or different terms proposed by Buyer are expressly objected to and shall not apply unless specifically agreed to in writing and signed by an officer of NCS.
1.4 Buyer’s acceptance of any shipment of goods, or performance under an acknowledgment, shall constitute acceptance of these Terms and Conditions, regardless of prior communications or conflicting terms.
1.5 Any change to a quotation or agreement must be approved in writing by an authorized officer of NCS. If NCS and Buyer have entered into a signed agreement covering the subject of this Sale Agreement and stating that it constitutes the entire agreement, then that signed agreement shall govern.
2.0 GENERAL
2.1 Notwithstanding any contradictory terms that may appear on the Buyer’s forms, delivery of goods or services by NCS does not constitute acceptance of any prior offer or terms submitted by the Buyer. NCS’ acceptance of any order is strictly conditioned on the Buyer’s assent to these Terms and Conditions.
2.2 All quotations and proposals from NCS are subject to final written acceptance before any obligation arises. Purchase Orders are only binding upon written acceptance by NCS or when NCS ships the goods.
2.3 Any Purchase Order issued more than thirty (30) days after the date of NCS’ quotation is subject to reconfirmation and acceptance in writing by NCS.
2.4 NCS may automatically reject any PO from a Buyer who is delinquent in payment or who submits an order exceeding their established credit limit.
2.5 Only officers of NCS are authorized to sign documents binding the company. No agreement or modification shall be valid unless signed by a duly authorized officer.
3.0 PRICING AND TAXES
3.1 All prices are Ex Works (EXW) at the NCS shipping point unless otherwise specified. Prices are exclusive of taxes, shipping and insurance, which are the sole responsibilities of the Purchaser.
3.2 Unless otherwise specified, price quotations are valid for thirty (30) days from the date of issuance and effective only for orders accepted within this period.
3.3 NCS reserves the right to adjust prices at the time of invoicing to reflect price increases resulting in any changes requested by the Purchaser in regard to delivery, materials, performance, or specialized equipment that requires NCS to incur costs in excess of those included in NCS’ quotation.
3.4 NCS reserves the right to correct all typographical or clerical errors, which may be present in the prices or specifications of a price quotation.
4.0 TERMS OF PAYMENT
4.1 NCS will grant United States federal, state and local government entities net 30 payment terms unless otherwise stated in a specific contract. All other entities will be granted credit terms in the sole and absolute discretion of NCS. All payments shall be in United States dollars.
4.2 NCS may change the limit or the length of payment terms or withdraw the extension of credit entirely at any time without consulting Buyer. NCS may require payment in advance of shipment.
4.3 NCS will invoice Buyer upon shipment and unless otherwise agreed to in writing and signed by an authorized officer of NCS, payment shall be due within the number of days specified from the invoice date. NCS may change or withdraw credit at any time and require payment in advance of shipment.
4.4 Buyer shall pay the invoiced amount to NCS without deduction or setoff, so that it is received by NCS at the address designated on the invoice by the due date. Purchaser hereby agrees to pay a late charge for any overdue balance due to NCS computed at a rate of one and one-half percent (1.5%) per month (18% annually) for the period of time said balance or any other part thereof is overdue. Said late charge shall be added to any overdue balance.
4.5 If any check offered by Buyer to NCS in payment of invoiced amount or any other amount due under this Sale Agreement is returned for lack of sufficient funds (i.e., stop payment or any other reason), Buyer will pay NCS a returned check handling fee in the amount of fifty dollars ($50.00) for each instance in addition to any fees imposed by the financial institution processing the transaction. Failure to pay the invoiced amount, returned check handling fee(s) and associated fees, or to compensate NCS for product(s) delivered will result in collection action. Any instance of a check being returned will result in Buyer being placed on certified check status or prepayment terms. Return to company check status is at the sole discretion of NCS. Buyer shall pay all costs of collection or other remedies for its default or breach of contract, including attorney’s fees, court costs, and any other costs incidental thereto. Buyer need not be notified of default and hereby waives any notice of default from NCS.
4.6 Prices are in U.S. dollars, EXW NCS’ facility in Manassas, Virginia or such other facility as NCS may designate as the place of shipment. Prices do not include any (i) municipal, state or federal sales, use, excise, value added, or other taxes, (ii) fees, duties and tariffs, and (iii) any shipping, insurance, or freight charges. In addition to the prices specified, the amount of any such taxes and charges will be invoiced by NCS either together with the goods or separately at a later date and shall be paid by Buyer.
4.7 Purchaser shall pay all costs of collection or other remedies for its default or breach of contract, including attorney’s fees, court costs, and any other incidental thereto. Purchaser need not be notified of default and hereby waives any notice of default from NCS. Furthermore, Purchaser hereby specifically waives choice of venue, consents to personal jurisdiction in Virginia, and agrees to litigate any dispute with NCS regarding the purchase in Prince William County, Virginia or in United States District Court, Eastern District of Virginia, Alexandria, Virginia. In addition to the remedies provided herein, NCS will be entitled to all other remedies provided at law and under the Uniform Commercial Code.
5.0 SHIPMENT AND DELIVERY
5.1 NCS will ship goods EXW NCS’ facility in Manassas, Virginia, or such other facility as NCS may designate. Title to all products pass to Buyer at NCS’ docks upon delivery of goods to the carrier for shipment per Buyer’s instructions.
5.2 NCS will deliver goods in commercially reasonable domestic United States packaging unless Buyer requests special packaging. The cost of any special packaging will be separately charged to Buyer unless a carrier which Buyer has designated is indicated on the acknowledgment.
5.3 NCS may make the goods available for pick-up by any carrier which NCS may select for shipment to Buyer. NCS will not be responsible to pay for the differences in cost between one mode and another, or for any other transportation related costs.
5.4 NCS will in no event be liable for any damage or loss to the goods while in transit, and any such claims are to be placed by the Buyer with the carrier.
5.5 NCS agrees only to use commercially reasonable efforts to deliver goods in accordance with its acknowledged delivery dates, but shall not be liable for delay or for failure to deliver any goods ordered. NCS reserves the right to make deliveries before any acknowledged schedule delivery date, and may make deliveries in part or in whole.
5.6 NCS’ invoices for partial or early deliveries shall be accepted and paid as rendered and, in the case of partial deliveries, without regard to whether the balance of the order is delivered. Before signing for a delivery, Buyer (or Buyer’s designated recipient) is responsible for verifying that the number of pieces, boxes, and/or pallets referenced on the Bill of Lading is accurate and in good condition. Any obvious damages or shortages must be clearly noted on the Bill of Lading at the time of delivery. Any hidden damages or shortages discovered post-delivery must be reported to NCS within three business days of the delivery date.
5.7 Buyer may not cancel, change, or reschedule any order in whole or part, unless NCS first agrees to do so in writing in each case. Any such agreement by NCS is conditioned upon Buyer’s compensating NCS for any damages, costs, and expenses incurred by NCS as a result of such cancellation, rescheduling, or change, and upon Buyer’s payment of any other charges and compliance with any other terms reasonably required by NCS.
5.8 Buyer understands and acknowledges that in the event demand for goods is in excess of NCS’ or its supplier’s capacity, NCS may in its sole discretion allocate its product(s) among itself and its other customers, postpone delivery of goods for a period of time consistent with its capacity and other commitments, or cancel scheduled deliveries for such goods.
5.9 NCS will not be liable or responsible to Buyer for failure to supply goods or for making only partial shipment against any order. Notwithstanding the foregoing, if NCS fails to ship any ordered goods within sixty (60) days after the acknowledged delivery date and such failure is not caused by Force Majeure (as defined below) or the fault of Buyer, Buyer may, as its sole and exclusive remedy, cancel the order with respect to product(s) not delivered by giving notice to NCS of such cancellation no later than the seventy-fifth (75th) day after the acknowledged delivery date.
5.10 Title to all items sold passes to Purchaser upon delivery of items purchased to the carrier for shipment per Purchaser’s instructions. NCS is not responsible for loss or damages after delivery to carrier.
5.11 Shipping errors must be reported within 48 hours.
6.0 CANCELLATION
6.1 Any request made by Purchaser for cancellation in total or in part of any Purchase Order must be submitted in writing to NCS as a Request for Cancellation, stating the reasons for the cancellation. (Special orders cannot be canceled.)
6.2 In the event of cancellation, Purchaser shall be liable for payment of charges incurred, including materials (if touched, if manufacturer’s box seal is broken or if the materials are used solely for Purchaser’s order and still in manufacturer’s sealed box), overhead, and profit, prior to the date that notice of cancellation is received by NCS for all parts peculiar to Purchaser’s requirements. If payment covers all such charges, upon receipt of payment from Purchaser such materials become the property of Purchaser. NCS will store said materials for up to 30 days pending receipt of Purchaser’s instructions for disposition. Such storage is at Purchaser’s risk and may be subject to storage charges if stored by NCS for longer than thirty (30) days from the cancellation date. If disposition instructions are not received within 60 days of the cancellation date, NCS will deem the materials as abandoned and will dispose of the materials at its sole discretion.
6.3 Purchaser shall also be liable for the full sales price of materials still in manufacturers’ sealed boxes that NCS uses in other customer orders in addition to Purchaser’s order if NCS does not have demand for such materials within 6 months of the cancellation date; in which case these materials become the property of the Purchaser upon receipt of payment in the same manner as set forth in Section 6.2. If NCS has demand for the materials within 6 months of the cancellation date, Purchaser shall pay a restocking charge of twenty (20%) percent of the full sales price and the materials will remain the property of NCS.
7.0 WARRANTY AND LIMITATIONS
7.1 No warranty is provided by NCS for products sold hereunder. NCS coordinates the manufacturer’s warranty for such products, if any, to the Purchaser’s without recourse to NCS. NCS does not adopt any manufacturer warranty.
7.2 Unless an express written warranty is otherwise furnished by NCS by a separate document, NCS MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ALL GOODS SOLD AND/OR SERVICES RENDERED HEREUNDER.
ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED AND EXCLUDED. IN NO EVENT SHALL NCS BE LIABLE FOR ANY LOSS OF USE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM PERSONAL INJURIES.
THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF THE LEGAL THEORY UNDER WHICH A CLAIM IS MADE, WHETHER BASED ON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF STATUTORY DUTY, INDEMNITY, CONTRIBUTION, OR THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE. NCS’ LIABILITY SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT OR SERVICE.
NCS’ ROLE IS LIMITED TO COORDINATING THE WARRANTIES PROVIDED BY THE MANUFACTURERS OF THE PRODUCTS SOLD. NCS DOES NOT ADOPT OR EXTEND THOSE WARRANTIES, NOR DOES IT CREATE ANY ADDITIONAL WARRANTIES OF ITS OWN. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS NCS ADOPTING ANY MANUFACTURER’S WARRANTY.
7.3 NCS will not be responsible for delays in performance or claims for damages whatsoever resulting from delays at manufacturing plants, transportation, inability to obtain materials or services, or due to strike, fires, floods, storms, war, insurrections, riots, any government regulation, order, act or instruction, or any other circumstances beyond NCS’ reasonable control, and Purchaser’s acceptance of goods and/or services shall constitute a waiver of any claims for damages due to such delays. Under no circumstances shall NCS be liable for any loss of use by the Purchaser of for any indirect or consequential damages arising from such delays.
8.0 RETURN MERCHANDISE AUTHORIZATION
8.1 NCS will accept returns only under our Dead-on-Arrival (DOA) policy. The DOA policy period is 30 days from the date of the applicable invoice. Should a component fail within this period, Purchaser may return it to NCS for repair or replacement.
8.2 Purchasers desiring to return DOA products must first obtain a Return Merchandise Authorization (RMA) number from NCS. Purchaser shall bear all shipping costs and risks when sending products back to NCS. Upon receipt, NCS will repair or replace the returned merchandise only in accordance with the terms of NCS’ RMA Policies/Procedures and applicable warranty provisions, if any. UNDER NO CIRCUMSTANCES WILL NCS PROVIDE A CASH REFUND. If repair or replacement is not appropriate, NCS will issue a credit memo to be used for future purchases from NCS.
8.3 If a product claimed to be defective is sent back to NCS and it proves to be non-defective upon NCS’ inspection, a $50.00 testing and handling fee will be assessed and the unit will be returned to Purchaser.
8.4 All repaired or exchanged units will be shipped back to Purchaser at NCS’ cost and risk.
8.5 This return policy DOES NOT cover physical damage incurred in shipping or resulting customer handling. For FOB ORIGIN orders, Purchaser is responsible for processing all freight claims related to shipping damages. For FOB DESTINATION orders, NCS is responsible for processing all freight claims related to shipping damages. In cases of customer handling damage, Purchaser is responsible for the cost of repairs.
9.0 PURCHASE MONEY SECURITY INTEREST
Until Purchaser fully satisfies all of its obligations to NCS, NCS retains and Purchaser hereby grants to NCS a purchase money security interest in all NCS goods heretofore or hereafter sold by NCS to Purchaser, as well as all proceeds therefrom. Purchaser shall execute and file such financing statements as NCS may reasonably request. Purchaser represents and warrants that no other liens or secured interest exist in said goods, or the proceeds therefrom. If such liens or secured interests do exist, Purchaser will provide NCS with written notice of the same. If Purchaser has signed a security agreement for inventory for the benefit of a financial institution, NCS recognizes that such security interest may have priority over NCS’ interest.
10.0 PATENTS AND RIGHTS
The materials to be provided by NCS under its quotation may include items for which a supplier holds patent rights or has patent rights pending, or has a license to manufacture under patent rights held by others. NCS will not be liable for any claims against the Purchaser arising out of such patent or license rights.
11.0 WAIVER
The failure of either party to enforce any provision of these standard terms and conditions at any time shall not be construed to be waiver of such provisions. No waiver by either party, either expressed or implied of any breach of any of any of these terms and conditions shall be construed as a waiver of any other breach of such terms and conditions. Any waiver granted hereunder must be in writing and signed by the party against whom it is sought to be enforced.
12.0 NOTICES
All notices required or authorized by these standard terms and conditions shall be deemed duly given if mailed by registered or certified mail, return receipt requested, first class, postage prepaid; if to NCS Technologies, Attn: Controller, 9601 Discovery Boulevard, Manassas VA 20109; and if to the Purchaser, to the name and address of Purchaser as it appears on the invoice. NCS and Purchaser shall be responsible for notifying each other of any changes of address.
13.0 LAW AND FORUM
13.1 NCS and Purchaser hereby agree that all contracts and transactions between NCS and Purchaser and specifically this Sale Agreement and any claim arising under or in connection with it (e.g., any order or acknowledgment to which it pertains, or any transition of product(s) provided pursuant to any such order of acknowledgment), are deemed to have been formed in, and shall be governed by, and construed in accordance with, the laws of the Commonwealth of Virginia excluding its choice-of-laws rules. Any suit, action, or proceeding involving NCS and Purchaser shall be brought in the courts sitting in Prince William County, Virginia or the United States District Court for the Eastern District of Virginia in Alexandria, Virginia. The U. N. Convention for the International Sales of Goods shall not apply.
14.0 CONFIDENTIAL INFORMATION
If Buyer receives from NCS any confidential or proprietary information of a business or technical nature in connection with the subject matter of an acknowledgment, Buyer shall keep such information in confidence and shall use it for the purposes for which it was provided by NCS. Buyer shall not disclose or provide any such information to any other person or entity, provided however that Buyer may disclose such information to those of its own employees who have a need to know and who have entered into confidentiality agreements with Buyer binding the employee to obligations equivalent to those of Buyer under this paragraph. NCS is not obligated to disclose or provide any confidential or proprietary information to Buyer, and NCS will have no obligation to Buyer with respect to any confidential or proprietary information of Buyer provided to NCS unless otherwise agreed in separate writing signed by an authorized officer of NCS.
15.0 EXPORT LAW COMPLIANCE
Product(s) sold or otherwise provided to Buyer by NCS and any technical data provided to Buyer by NCS are subject to the United States Export Administration Regulations. Buyer will not directly or indirectly: (a) export, re-export, or permit the export or re-export of any of NCS’ product(s) or technical data, or any product(s) delivered therefrom; (b) provide NCS’ product(s) or technical data to be used for any purpose; in violation of any United States laws, regulations, or orders.
16.0 FORCE MAJEURE
NCS shall not be liable for any failure or delay in performance of any of its obligations under this Sale Agreement (including without limitation any obligation regarding delivery of goods) because of any of the following: force majeure or any other cause beyond NCS’ control; an act of God; war; riot; fire; terrorism; civil disturbance; explosion; accident; earthquake; flood; sabotage; pandemics/epidemics; cyberattacks; supply chain disruptions; inability to obtain or shortage of fuel, power suppliers, components, subassemblies or material; inability to obtain transportation; failures of non-affiliate subcontractors; or governmental laws.
17.0 INDEMNIFICATION
17.1 The Buyer shall indemnify, defend, and hold harmless NCS Technologies, Inc., its affiliates, officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees and court costs) arising out of or relating to:
(a) Buyer’s breach of any representation, warranty, or obligation under this Sale Agreement;
(b) Buyer’s misuse, modification, or unauthorized use of the products;
(c) any injury (including death) or damage to property caused by the Buyer or its agents in connection with the products;
(d) any third-party claims related to Buyer’s use, sale, or distribution of the products, including but not limited to product liability claims; and
(e) any infringement or alleged infringement of intellectual property rights arising from Buyer’s specifications or instructions.
17.2 This indemnity shall survive the expiration or termination of this Sale Agreement.
18.0 DATA PRIVACY AND SECURITY
18.1 Buyer acknowledges and agrees that any personal, confidential, or proprietary data provided to NCS in connection with the purchase of goods or services shall be handled in accordance with applicable data protection and privacy laws, including but not limited to the Virginia Consumer Data Protection Act (VCDPA) and, if applicable, federal regulations such as the Gramm-Leach-Bliley Act (GLBA) or HIPAA.
18.2 Buyer represents and warrants that it has obtained all necessary consents and authorizations for any personal data it provides to NCS, and that such data is accurate, complete, and lawfully provided.
18.3 NCS will take commercially reasonable administrative, physical, and technical measures to protect Buyer’s data from unauthorized access, disclosure, alteration, or destruction. However, NCS does not guarantee that unauthorized third parties will never be able to defeat those measures and expressly disclaims liability for any such breaches beyond its reasonable control.
18.4 Buyer agrees not to transmit to NCS any sensitive personal data (including but not limited to Social Security numbers, financial account information, or health-related information), unless required for the transaction and explicitly agreed upon in writing by NCS.
18.5 In the event of a data security incident involving Buyer’s data, NCS will notify Buyer in accordance with applicable law and cooperate in good faith to address the issue.
19.0 ELECTRONIC SIGNATURES AND COMMUNICATIONS
19.1 The parties agree that this Sale Agreement and any related documents, including but not limited to purchase orders, invoices, acknowledgments, notices, and amendments, may be executed or accepted through electronic means, including electronic signatures, email, or online ordering systems, and such execution or acceptance shall be deemed binding as if signed in ink.
19.2 The parties agree that electronic signatures (including typed names or symbols affixed to an electronic document) and electronic records maintained in the normal course of business shall be admissible in any legal proceeding and shall have the same force and effect as manually signed paper documents.
19.3 All electronic communications, including official notices, sent via email to the designated representatives of the parties shall be considered delivered when sent, unless otherwise specified in this Agreement.
19.4 Buyer waives any objection to the validity or enforceability of this Agreement based on the use of electronic signatures or communications, to the fullest extent permitted by applicable law, including the Electronic Signatures in Global and National Commerce Act (E-SIGN) and the Uniform Electronic Transactions Act (UETA).