NK DISTRIBUTOR TERMS AND CONDITIONS OF SALE
By checking the box below and signing this form, you represent and warrant that you fully understand and agree to the Nielsen-Kellerman Terms and Conditions of Sale with each purchase. This agreement must be completed before any orders will be processed.
These NK Distributor Terms and Conditions of Sale are incorporated by reference into all published reseller price lists and other offerings for sale by Nielsen-Kellerman Co. ("NK") of Kestrel® branded weather, environmental and ballistics instruments and accessories ("Kestrel Products"), NK® or Nielsen-Kellerman® branded sports performance instruments and accessories ("NK Products") and Blue Ocean® branded megaphones and rugged audio products and accessories ("Blue Ocean Products") (collectively, the "Products") and govern all sales of the Products by NK to any NK authorized reseller ("Distributor").
To qualify to purchase at wholesale pricing, Distributor must submit the following documentation to NK and NK must approve Distributor's application:
- A complete NK Distributor Application.
- A copy of Distributor's Resale License or equivalent government authorization to conduct business and collect local sales tax and/or VAT.
- Distributor's resale registration for any other location outside of Distributor's home location to which Distributor wishes to make drop-ship sales – i.e. sales which NK ships on Distributor's behalf (see "Drop Shipping" and "Sales Tax" section for more information).
- If Credit Terms are desired, a copy of NK's Distributor Credit Application.
- If participation in an electronics recycling scheme is required in any countries to which Distributor intends to ship the Products, evidence of Distributor's registration and compliance.
- If requested, an NK Foreign Corrupt Practices Act Questionnaire and Certification of Compliance.
NK may require periodic update of this information. Distributor must also review and acknowledge receipt and acceptance of these NK Distributor Terms and Conditions of Sale annually. Distributor must also comply with minimum opening order and minimum annual sales requirements as specified in the current year price list for the Products and/or other written agreement.
Distributor Account Termination
Any breach of these Terms and Conditions may result in NK ceasing to do business with Distributor, terminating Distributor's purchase account and accepting no further orders. All outstanding invoices will remain due on their original terms.
Shipping and Handling
Domestic orders are shipped FOB destination, freight prepaid, via UPS Ground unless otherwise specified. International orders are shipped DDU destination, freight prepaid, via UPS Worldwide Express unless otherwise specified. NK may periodically offer reduced price shipping on a promotional or other basis. If a product is out of stock, NK will backorder unless instructed otherwise.
NK will drop ship orders to domestic US end user customers subject to approval by an authorized representative of NK. Drop shipment approval may be granted to Distributor on a blanket or case-by-case basis. Drop shipment orders will be subject to a $15.00 drop ship handling charge regardless of quantity. Sales tax will be charged on all drop ship orders unless NK has a current resale license on file for the ship-to destination at the time of order receipt. See Sales Tax section for more information.
Handling Charges - Small Orders and Bill to Distributor Shipping Accounts
Orders below $750 will be subject to a $15 per order small order handling charge. Handling charges will be waived on approved drop ship orders. Orders shipped on Distributor's shipping account may incur a handling charge if imposed by the selected shipping service provider.
Sales Tax & Value Added Tax
NK complies with US state and local sales tax registration and collection requirements in jurisdictions where NK has established nexus. If obligated to collect sales tax for the delivery location of the sale, NK will collect and remit sales tax on all sales to Distributor delivered to that location, whether to Distributor or drop ship, unless Distributor has provided NK with a current resale license for that location. It is the obligation of Distributor to provide NK with such license information prior to or at the time of placement of the purchase order for the Products. Distributor agrees to comply with all laws relating to sales tax nexus in the USA and/or Value Added Tax ("VAT") or other taxes in Distributor's local jurisdiction and to properly collect and remit sales tax and/or VAT on its sales of the Products.
Standard terms available to Distributor accounts are Prepay (credit card, COD, money order, wire transfer or cleared business check) or Net 30. Net 30 terms require review and approval of a signed NK Credit Application, which may require up to 21 days to process. Credit limits will be set based upon credit references, company history, and D&B Rating where available. Continued Net 30 terms are subject to timely payment of all invoices. Invoices not paid within terms are subject to a 2.5% service charge per month on the past due balance (or such lower percentage as allowable by law). Invoices are not subject to discount unless expressly approved by NK. No service fee is assessed against credit card prepayments. Credit card payments accepted on invoices outstanding for ten (10) days or more will carry a 3.0% service charge.
Resale Price Maintenance Policy – USA Only
In order to foster the creation of a competitive climate in which customers may purchase the Products through a variety of channels, and in which all resellers of the Products are encouraged to invest in providing the high-quality customer education, service and support which enhance the NK, Kestrel and Blue Ocean brands by providing customers with a high-quality purchase and use experience, NK maintains a Resale Price Maintenance ("RPM") Policy applicable to all promotion and sales of the Products within the United States of America.
Within the USA, Distributor may only advertise net retail prices that are at or above the Minimum Advertised Price ("MAP") for Kestrel Products and the Recommended Retail Price ("RRP") for NK Products and Blue Ocean Products as listed on NK's current published price lists for the Products. Distributor may not make reference to the existence of NK's RPM policy. The terms "minimum advertised price", "MAP" and or "RPM" may not appear in any advertisement or promotion featuring NK Products (e.g., "$49.95 MAP"). Distributor also may not advertise that they are offering "the lowest price anywhere" or similar language. All forms of advertising of the Products are subject to this RPM Policy, including mailings, catalogs, flyers, inserts, newspapers, magazines, displays at consumer exhibitions and shows, and any and all other forms of advertising media, including television, radio, the Internet and any other electronic communication such as email newsletters, email solicitations, websites, e-commerce shopping carts, and third-party websites. Online auction sales featuring an opening bid below MAP for Kestrel Products or RRP for NK Products or Blue Ocean Products will be considered a violation of RPM Policy. Sales of closeout, discontinued or distressed merchandise, or sales in accordance with NK approved promotional programs, will not be considered a violation of this RPM Policy. Distributor may also, at its option, provide incentives to customers in the form of discounted shipping, service, support or sales of products other than the Products so long as such incentives and discounts maintain the image of a quality brand sold by a quality resale partner.
NK reserves the right to adjust the MAP or RRP with respect to any Product at its sole discretion upon thirty (30) days advance written notice to Distributor. NK reserves the right to unilaterally cease sales of the Products to any Distributor who violates this RPM Policy. This RPM Policy applies only advertised prices and does not apply to the price at which the Products are actually sold. EACH DISTRIBUTOR REMAINS FREE TO ESTABLISH ITS OWN RETAIL AND/OR CONTRACT PRICES AND RETAINS SOLE RESPONSIBILITY AND INDEPENDENT JUDGMENT WITH RESPECT TO ALL PRICING AND BIDDING DECISIONS RELATING TO THE PRODUCTS. THIS IS NK'S NON-NEGOTIABLE UNILATERAL POLICY. NK MAY AT ANY TIME MODIFY, SUSPEND, OR DISCONTINUE THIS RPM POLICY IN WHOLE OR IN PART AT ITS SOLE DISCRETION.
Compliance with Anti-Bribery Laws
Distributor acknowledges that it is NK's policy to conduct its business in accordance with all applicable laws and regulations of the United States and foreign jurisdictions where it does business. This includes, without limitation, the U.S. Foreign Corrupt Practices Act ("FCPA"), the U.K. Bribery Act, and all other applicable statutes which prohibit bribery and corruption in those jurisdictions where NK does business (collectively, "Anti-Bribery Laws"). Accordingly, Distributor agrees that, in carrying out their responsibilities under this Agreement, or in connection with any other business transactions involving NK, Distributor shall not (i) give or offer anything of value to any person to induce that person to act in violation of any law for the benefit of or on behalf of NK or Distributor; or (ii) pay or agree to pay, offer to pay or promise to pay, directly or indirectly, any funds or anything of value to any government official or employee (including officials or employees of state-owned or controlled businesses and institutions), political party or campaign official, candidate for foreign political office, official or employee of a public international organization, or any other person acting on behalf of any of the foregoing (each, a "Government Official") for the purpose of (a) improperly influencing an act or decision of such Government Official or improperly inducing such Government Official to use his or her influence or position to affect any act or decision of such government or instrumentality, (b) obtaining any improper business advantage, or (c) improperly obtaining or retaining business. Distributor certifies that no owner, partner, officer, director, or employee of Distributor or any of their family members is or will become a Government Official within any country in which Distributor sells or offers for sale the Products without notifying NK.
Compliance with Export Regulations
Distributor acknowledges that it is NK's policy to conduct its business in accordance with U.S. export and sanctions regulations, including but not limited to the Export Administration Act of 1979, as amended, the Export Administration Regulations, the International Emergency Economic Powers Act, the Arms Export Control Act, the International Traffic in Arms Regulations, Executive Orders of the President regarding embargoes and restrictions on trade with designated countries and Sanctioned Persons, the embargoes, restrictions and regulations administered by OFAC, the antiboycott regulations administered by the U.S. Department of Commerce and the U.S. Department of the Treasury (collectively, "Export Regulations"). Accordingly, Distributor certifies that neither the Distributor nor any officers, employees, directors, or partners thereof, is (i) a person or entity listed on the Specially Designated Nationals and Blocked Persons List ("SDN List") administered by the Office of Foreign Assets Control ("OFAC") (ii) any person or entity identified on OFAC's List of Foreign Sanctions Evaders pursuant to Executive Order 13608; (iii) any person or entity identified as blocked by OFAC pursuant to Executive Order 13599; (iv) an entity owned or controlled by any such person or entity identified in paragraphs (i) through (iii) of this paragraph; or (v) any person or entity listed on the Entity List or Denied Persons List maintained by the Bureau of Industry and Security of the U.S. Department of Commerce (each of the persons or entities identified at (i) through (v) of this paragraph, a "Sanctioned Person"). Distributor also represents and warrants to NK that it shall not export, re-export or transfer any Products in violation of Export Regulations. Without limiting the generality of the foregoing, Products provided by NK to Distributor hereunder shall not be, directly or indirectly, sold, leased, assigned, transferred, conveyed or in any other manner disposed of in any country or region subject to comprehensive United States sanctions or embargo (as of the date of this addendum, Cuba, the Crimea Region of Ukraine, Iran, North Korea, or Syria) or to a Sanctioned Person.
Proposition 65 – California Only
Distributors located in or advertising for sale or selling the Products in California agree to provide potential customers for the Products with California Proposition 65 notification relating to the Products in a form or location visible to potential customers prior to making a decision to purchase the Products. The Proposition 65 notice should read: "WARNING: This product and/or its included or branded accessories can expose you to chemicals, including lead and lead compounds, which are known to the State of California to cause cancer and bisphenol A (BPA), and phthalates DINP and/or DEHP, which are known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov. You may also visit www.kestrelinstruments.com/compliance for a more in-depth statement regarding Proposition 65 as it relates to Kestrel's manufacturing processes and products."
Electrical and Electronic Equipment Recycling Requirements
Many countries and jurisdictions have laws requiring that companies that put electronic equipment on the market to end users register and participate in a recycling program to prevent waste electrical and electronic equipment ("WEEE") from being introduced to the waste stream. Within the EU, each country has a recycling scheme in compliance with the WEEE Directive 2012/19/EU that places the responsibility for disposal and or recycling of WEEE on the first end-user reseller, called "the producer" for the purposes of these laws. Other countries around the world have similar programs under different names. NK is committed to ensuring that the Products do not enter the waste stream at their end of life. NK Distributors acknowledge and agree that they are required to register and comply with any recycling requirements for waste electrical and electronic equipment in effect in whatever countries they sell the Products, and agree to offer customers recycling services for the Products and participate in an authorized recycling program for the Products they sell if required by law.
Internet Marketing & URL's
All Distributors selling NK Products online should clearly indicate that they are an authorized reseller and in no way the manufacturer or creator of the Products. Ideally, the designation "Authorized NK® Reseller" or "Authorized Kestrel® Reseller" or "Authorized Kestrel® Reseller" should appear in the header or footer of every product page. Where possible, Distributor's website should provide links back to NK's brand sites for detailed product information and technical support. To ensure customers have ready access to the most current information, distributors should provide links to KestrelInstruments.com on Kestrel Products related pages, NKSports.com on NK Sports Products related pages, and BlueOceanMegaphone.com on Blue Ocean Megaphone Products related pages. Under no circumstances shall Distributor register any trademark owned by NK or incorporate any NK trademark in any domain names or URLs without express written license from NK (see Copyrights and Trademarks, below).
3rd Party Selling
Distributor may not list the Products for sale via Amazon, eBay, or any other 3rd-party sales or auction platform, or knowingly sell the Products to any other reseller engaged in such 3rd party selling, without express written authorization from NK. NK reserves the right to cease sales of the Products to any Distributor who violates this 3rd Party Selling prohibition.
Currency, Prices and Products Subject to Change
All prices on any NK Distributor price list are quoted in US Dollars and all sales transactions of the Products shall be conducted in US Dollars. NK reserves the right to change its wholesale price lists, modify MAP or RRP, add Products, discontinue Products, or change Product configurations upon a minimum of thirty (30) days' notice to Distributor via the form of communication most commonly employed with Distributor (email, fax, phone, mail).
Advertising and Promotion
NK makes a substantial investment in print, internet, social and other forms of advertising and media to support sales of the Products. Distributor is encouraged to contact NK with suggestions for media and publications suited to their market or other promotional opportunities. NK will also support Distributor with license-free use of Product images and NK copy in print and online as well as Product samples for photography. All images and copy relating to the Products must accurately represent the Products' features, appearance, specifications and warranty.
Copyrights and Trademarks
NK is the owner of numerous trademarks and service marks as well as copyrighted designs and materials associated with the Products. NK's trademarks and copyrights are valuable proprietary designations, well known, recognizable, and associated in the public's mind with NK and the Products. Distributor shall use NK's trademarks and copyrights only to advertise, promote, sell and distribute the Products and only in conjunction with the Products. All use of these trademarks and copyrights by Distributor will inure to the benefit of NK. Distributor may not co-brand or re-label any Product without express written permission from NK. Distributor may not advertise or offer any Product for sale in a manner likely to create confusion as to the owner of these trademarks and copyrights or the manufacturer of the Products. Under no circumstances shall Distributor register any trademark owned by NK or incorporate any NK trademark in any domain names or URLs without express written license from NK. A complete current listing of NK's trademarks may be found at www.NKSports.com/legal or www.KestrelInstruments.com/legal.
NK has entered into exclusive Distributor agreements covering sales and support of the Products in certain markets and countries. Distributor is required to honor these exclusive Distributor agreements by not marketing or making sales of Kestrel Products to Australia and/or NK Products to customers primarily purchasing the Products for use in ROWING in Australia, Belgium, Canada, France, Ireland, Italy, Japan, Netherlands, New Zealand and United Kingdom (collectively, the "Prohibited Territories"). Mere access to Distributor's website shall not be considered a violation of this provision. Distributor is requested to promptly refer to NK all purchase inquiries for sales prohibited by this section.
Kestrel Products are guaranteed to be free of defects in materials and workmanship for a period of FIVE YEARS from the date of their first consumer purchase and NK Products and Blue Ocean Products are guaranteed to be free of defects in materials and workmanship for a period of TWO YEARS from the date of their first consumer purchase. NK will repair or replace any defective Product or part when notified within the warranty period with return by domestic ground shipping or NK's choice of method of international shipping at no charge. The following shall be excluded from warranty coverage: damage due to improper use or neglect (including corrosion); damage caused by severe or excessive impact, crushing or mechanical harm; modifications or attempted repairs by someone other than an authorized NK repair agent; impeller failure not caused by a manufacturing defect; normal usage wear and reduction in battery capacity; failed batteries; and accuracy issues resolvable by recalibration. If no warranty registration or proof of purchase is provided, the warranty period will be measured from the Product's date of manufacture. All product liability and warranty options are governed exclusively by the laws of the Commonwealth of Pennsylvania.
Except for the warranties set forth herein, NK disclaims all other warranties, expressed, implied or statutory, including, but not limited to, implied warranties of merchantability or fitness for a particular purpose. Any implied warranties that may be imposed by applicable law are limited to the term of this warranty. In no event shall NK be liable for any incidental, special or consequential damages, including, but not limited to, loss of business, loss of profits, loss of data or use, whether in an action in contract or tort or based on a warranty, arising out of or in connection with the use or performance of any Product, even if NK has been advised of the possibility of such damages. Repair, and (upon availability) replacement, as applicable, is the sole and exclusive remedy with respect to any breach of the NK Limited Warranty set forth herein.
All returns require prior approval. Returns after 90 days will be subject to a restocking fee of 15% of the original invoice price. Returns must be in the original undamaged packaging and must be free of all Distributor labels or markings. Distributor will be assessed $5.00 per unit for any units requiring repackaging.
Applicable Law and Dispute Resolution
All sales transactions of the Products between NK and Distributor shall be governed by the laws of the Commonwealth of Pennsylvania. If a dispute arises and cannot be resolved by the parties, either party may make a written demand for formal resolution of the dispute. The written request will specify the scope of the dispute. Within 30 days after such written notice, the parties agree to meet for one (1) day with an impartial mediator and consider dispute resolution alternatives other than litigation. If an alternative method of dispute resolution and/or settlement is not agreed upon within sixty (60) days of the one-day mediation, the parties are free to pursue other forms of dispute resolution. If Distributor is legally domiciled in the United States, any litigation arising in connection with this Agreement that the Parties can not settle amicably shall be subject to the exclusive jurisdiction of courts situated in the Eastern District of Pennsylvania and each of the parties waives its right to contest venue or jurisdiction. If Distributor is legally domiciled outside of the United States, all disputes arising out of or in connection with this Agreement that the Parties can not settle amicably shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said rules. The arbitration shall take place in New York, NY, and shall be in English.