Nui USA Ltd ("Nui") provides website features and other services to authorized Participants to facilitate trading activities through a digital marketplace.
- Accessing the Nui Marketplace
- Bid/Offer/Contract Process
- Applicability of Participant Purchase & Sale Terms & Conditions & Revised Code of Washington, Title 62A, Uniform Commercial Code.
- Counterparty De-select
- Fees & Fee Payments
- Term, Termination & No Assignment
- Relationships between Participants, Nui, and Third Parties
- Representations & Warranties
- Exhibit A (Participant Contract Terms & Conditions)
1.02 "Bid" means a Participant's indication of an intent to accept an Offer to enter into a Contract to buy goods on the Nui Marketplace.
1.03 "Broker-dealer" means person engaged in the business of buying and selling securities under the Securities Exchange Act of 1934
1.04 "Buyer" means a person or entity who buys or contracts to buy goods
1.05 "Contract" means a binding agreement to buy or sell goods entered between Participants on the Nui Marketplace.
1.06 "Contract Confirmation" means an e-mail notification to the Parties evidencing a Contract made on the Nui Marketplace to buy and sell goods.
1.07 "Counterparty" means a Participant who has entered into a Contract with an opposing Party.
1.08 "INCO Terms" means the most recently published Incoterms rules (which are the Incoterms 2020 rules as of June 1, 2022) published by the International Chamber of Commerce that determine the responsibilities of buyers and sellers for the delivery of goods under sales contracts.
1.09 "Nui Services" means the digital and business solutions provided by Nui to Participants, including transaction facilitation, data analytics, trade and activity dashboards, and reporting tools.
1.10 "Nui Intellectual Property" means all legally protectable intellectual property owned, created, or rightfully used by Nui, including but not limited to the Nui Website, the Nui Marketplace, computer code, software, trademarks, copyrights, and patents.
1.11 "Nui Marketplace" means the web page or location within a Nui Website that enables authorized Participants to make Bids, Offers, and Contracts to buy and sell goods.
1.13 "Merchant" means a person who deals in goods of the kind or otherwise by his or her occupation holds himself or herself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his or her employment of an agent or broker or other intermediary who by his or her occupation holds himself or herself out as having such knowledge or skill.
1.14 "Offer" means a Participant's indication of an intent to enter into a Contract to sell goods on the Nui Marketplace.
1.15 "Participant" means a legal entity or natural person who is authorized to buy or sell goods on the Nui Marketplace.
1.16 "Party" means a Participant who enters into a Contract with a "Counterparty" Participant on the Nui Marketplace.
1.17 "Participant Contract Terms & Conditions" means the Terms & Conditions attached as Exhibit A which Buyer and Seller agree shall apply to the Contract between Buyer and Seller unless expressly superseded, in whole or in part, by alternative written agreement(s) between Buyer and Seller.
1.18 "Policy" means the policy or policies posted or otherwise communicated by Nui that apply to the activities taking place on and regarding the Nui Website and Nui Marketplace.
1.19 "Seller" means a person or entity who sells or contracts to sell goods.
2. Accessing the Nui Marketplace
2.02 Establishment of Credit: Nui may require a Participant to establish creditworthiness prior to accessing the Nui Marketplace. Potential Participants agree to provide all information required to determine creditworthiness and credit limits and consent to a credit check by Nui or a third-party. Potential Participant authorizes Nui or its agent to take whatever measures are required at its discretion to confirm the correctness of Potential Participant's supplied information, including but not limited to periodically requesting and obtaining Participant credit and financial information from such sources as may be relevant to access Participant's creditworthiness. Nui reserves all rights to restrict Participant's access to the Marketplace at any time if, in Nui's judgement, Participant's creditworthiness is uncertain.
3. Bid/Offer/Contract Process
3.01 Participants access the Nui Website online and access the Nui Marketplace by signing in using their confidential account credentials. Participants can generally enter Bids and Offers at any time via the Nui Marketplace. Bids and Offers are anonymous. If a Bid and Offer are matched, an irrevocable Contract is instantaneously entered into between the Bidding Party and the Offering Party and both Parties are informed of the Contract via a Contract Confirmation e-mail. Nui is not a party to the Contract. The Contract Confirmation contains relevant information about the Contract, including the names of each Party.
4. Applicability of Participant Purchase & Sale Terms & Conditions & Revised Code of Washington, Title 62A, Uniform Commercial Code.
4.01 All Participants agree that the "Participant Contract Terms and Conditions" attached as Exhibit A shall apply to all Contracts made on the Nui Marketplace except if and to the extent that additional or different terms are expressly agreed upon by the Parties. In addition, the Parties agree that, except as otherwise expressly agreed in writing between the Parties, the Revised Code of Washington, Title 62A, Uniform Commercial Code ("the UCC") shall apply to all Contracts made on the Nui Marketplace. In the event of a conflict between the terms of the express agreements of the Parties, these Participant Contract Terms & Conditions, and the UCC; The express agreements of the Parties shall control, the Participant Contract Terms and Conditions shall control thereafter, and the UCC shall control if neither of the prior sources addresses the issue presented.
5. Counterparty De-select
5.01 The Nui Marketplace's default setting is that all Participants may enter Contracts with all other Participants. When a new Participant obtains access to the Nui Marketplace, a pop-up message will enable Participants to de-select the new Participant as a Counter Party, thereafter, disabling the ability of the de-selecting Participant and the de-selected Participant from engaging in a Contact. When a Participant is de-selected by another Participant, there is an opportunity for the de-selected Participant to send a "Connection Request" to the de-selecting Participant. Additional communication opportunities may be provided.
6. Fees & Fee Payments
6.01 Subscription Fees: Participants agree to pay a Subscription Fee in consideration for access to the Nui Marketplace and Nui Services. The Subscription Fee amount shall be as determined by Nui and agreed to by Participant, depending on the Nui Services, the number of users, and other factors.
6.02 Other Fees: Participant agrees to pay Other Fees as may be determined by Nui from time to time.
6.03 Fee Payments: Participant shall pay all Nui fees within 14 days of Nui's invoice date. If the invoice is not paid within 14 days, Nui reserves the right to suspend access to the Nui Marketplace, to terminate the Participant's ability to access the Nui Marketplace, and to pursue other remedies for default.
7. Term, Termination & No Assignment
7.01 The Access Agreement between Nui and Participant shall be for an initial period and shall automatically renew for additional periods indefinitely unless Participant provides Nui with written notice of its intent to terminate, with such notice delivered at least 45 calendar days prior to the last day of the then-effective term. Participant may deliver effective written notice by sending a notice of termination e-mail to Nui at Nui's designated e-mail address.
7.03 Client may not assign or transfer any rights or obligations hereunder, whether by merger, acquisition, or otherwise, without the prior written consent of Nui (through its Chief Executive Officer or General Counsel).
8. Relationships between Participants, Nui, and Third Parties
8.01 Nui provides access to the Nui Website, Nui Marketplace, and Nui Services to Participants. Nui does not engage in, advise, or otherwise recommend any transaction between Participants and such transactions are made at the sole discretion of the Participants. Contracts made between Participants within the Marketplace are solely regarding the purchase and sale of goods for physical delivery and are made directly and solely between those Participants. Nui is not responsible for examining or evaluating, and does not warrant, the offerings of any Participants or such Participant's ability to perform its obligations under any Contract. All risks associated with or arising from any Contract occurring within the Marketplace are solely borne by the Parties to the Contract, including but not limited to performance risk, price risk, credit risk, or other risk that may adversely affect the Contract or the Parties thereto.
8.02 There are no fiduciary duties owed by or between the Participants and Nui and Participants expressly agree that Nui is not and shall not be any Participant's advisor, agent, broker or fiduciary in regard to any Contract. Nui does not assume any responsibility or liability for the actions or inactions of the Participants, or the representations or misrepresentations of Participants. Nui's preliminary credit check of Participant and on-going rights to determine creditworthiness SHALL NOT be relied upon the Participants when deciding to engage in a Contract with any Participant. There are no third-party beneficiaries to this Agreement.
9. Representations & Warranties
9.01 Participant agrees, represents, and warrants that:
- Participant’s application is true and complete, and that Participant will immediately provide written Notice to Nui of any material changes.
- Participant: (i) is authorized under its governing documents and in the jurisdictions in which it is organized or regulated to enter the Access Agreement and trade the products it selects; (ii) is under no legal incapacity; and (iii) that persons identified to enter Bids and Offers have proper authority and have sufficient knowledge and experience to understand the nature and risks of the contemplated transactions.
- Participant is not acting as a broker-dealer; futures commission merchant; regulated investment professional; or affiliate, associated person or employee thereof, while engaged on the Nui Marketplace.
- Participant qualifies as and is a “Merchant” as defined by the UCC, meaning Participant is a highly skilled person or business entity that deals professionally in the purchase and sale of the types of goods transacted on the Nui Marketplace.
- Participant will not seek, accept, or rely on any advice from Nui or its representatives, or any communication that could be construed as such. Because Nui does not provide advice, Nui is not responsible for the suitability or appropriateness of any Bid or Offer of Participant.
- Participant is responsible for the confidentiality and use of and will reasonably safeguard and will not permit others to use, Participant's account credentials, such as Participant's username or password. Participant agrees to provide immediate notice to Nui of any theft or loss of such credentials, or any unauthorized access to Participant's account. Use of Participant's credentials to affect any action will constitute conclusive evidence that Nui may treat such action as authorized. Participant is responsible for all transactions entered using Participant's credentials. Nui is not liable for loss or damages caused by any third-party using Participant's credentials. Unless Nui agrees in a writing executed by its Chief Executive Officer or General Counsel, Client will not permit any third party to access Client's account using Client's account credentials.
- Nui has no responsibility for Participant's transmission of Bids or Offers that are inaccurate or not received or displayed on the Nui Marketplace.
- Participant authorizes Nui directly or through third parties, to make any inquiries that Nui considers necessary to conduct business with Participant. This may include ordering a credit report, performing other credit checks, and performing an investigation in the event of any default or breach of the obligations herein by Participant, or verifying the information Participant provides against third-party databases.
9.02 "Default" occurs automatically, without notice, upon: (i) Participant's breach or wrongful repudiation of any agreement with Nui; (ii) Participant failure to provide assurances satisfactory to Nui (in Nui's sole discretion) of performance of an obligation, after request from Nui; (iii) proceedings by or against Participant under any bankruptcy, insolvency, or similar law; (iv) assignment for the benefit of Participant’s creditors; (v) appointment of a receiver, trustee, liquidator or similar officer for Participant or Participant's property; (vi) Participant representations being untrue or misleading when made or later becoming materially untrue and not corrected within three (3) business days; (vii) legal incompetence of Participant or Participant’s agents;
9.03 Disclaimer of Warranties & Limitation of Liabilities: There is no warranty of any kind, express or implied, regarding information provided within the Nui website or Nui Marketplace, including warranty of merchantability, warranty of fitness for a particular use or warranty of non-infringement. Participant accepts the Nui Marketplace and all Nui data "as is".
Nui has no responsibility or liability for any aspect of the interactions between Participants. In no event will Nui, or any Nui affiliate, be liable for consequential, incidental, special or indirect damages. Without limiting the Disclaimer of Warranties and Limitation of Liability, unless otherwise required by applicable law, in no event will Nui’s aggregate liability with respect to any claim arising from or related to the Access Agreement or Participant’s use of the Nui Marketplace exceed the Annual Fees paid by a Participant claiming damages. Reliance on quotes, data or other information is at Client's own risk. Nui (and affiliate of Nui) shall not be liable to participant by reason of delays or interruptions of service or transmissions, or failures of performance of the Nui Marketplace, regardless of cause, including, but not limited to: those caused by hardware or software malfunction; Nui's intentional acts; or Nui's failure to act to prevent service disruption or system failure. Participant recognizes that there may be delays or interruptions in the use of the Nui Marketplace, including, for example, those caused intentionally by Nui for purposes of servicing the Nui System.
9.04 Indemnification: Participant agrees to indemnify, hold harmless and defend Nui, its affiliates, and their respective officers, directors, employees, agents, and representatives from any and all liabilities, losses, costs, judgments, penalties, claims, actions, damages, or expenses (collectively, "Losses") arising from or relating to: (i) any action taken in reliance on any representation, information or instruction received from Participant; (ii) Participant’s breach of this Agreement; (iii) any action taken by Nui to enforce its rights under this Agreement; (iv) any inquiry, information request, or other action by a third party related to Participant's account, including to Participant’s assets, liabilities, transactions, instructions, actions, or inactions; (v) any event of Default as defined hereunder; or (vi) Participant's violation or infringement of any intellectual property right held by Nui or its affiliates, except to the extent that such Losses directly result from Nui's gross negligence, fraud or willful misconduct.
9.05 Severability of Access Agreement: If any provision of the Access Agreement is unenforceable, it shall not invalidate other provisions. If any provision of the Access Agreement is declared or found to be illegal, unenforceable, or void, in whole or in part, then Participant and Nui will be relieved of all obligations arising under such provision, but only to the extent that it is illegal, unenforceable or void, and Participant and Nui agree that the Access Agreement will be deemed amended by modifying such provision to the minimum extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefor another provision that is legal and enforceable and achieves the same objectives. Failure of Nui to enforce any term or condition of the Access Agreement is not a waiver of the term or condition. No provision of the Access Agreement can be waived without the written consent of Nui (through its Chief Executive Officer or General Counsel).
9.07 Applicable Law and Disputes: The Access Agreement is governed by the laws of the State of Washington, without giving effect to conflict-of-laws provisions. State and federal courts located in the County of King have exclusive jurisdiction over disputes relating to the Access Agreement, and all other agreements entered between Participant and Nui, except when arbitration is provided. Participant waives any objection to the bringing of any proceedings in any such court by Nui and agrees not to claim that such proceedings have been brought in an inconvenient forum or that such court does not have jurisdiction over it. However, the foregoing shall not prevent Nui from bringing an action in any court of any other jurisdiction, in its discretion. In all judicial actions, arbitrations or dispute resolution methods, the parties waive any right to punitive damages.
10. Exhibit A (Participant Contract Terms & Conditions)
10.01 Contract & Contract Confirmation: Within the Nui Marketplace, a Contract for the purchase and sale of goods is instantaneously entered into between the Bidding Party (hereafter “Buyer”) and the Offering Party (hereafter “Seller”) when Bid and Offer terms are matched. Both Parties are informed of the Contract via a “Contract Confirmation” e-mail. The Contract Confirmation contains relevant information about the Contract, including the names of each Party and the basic terms. In the case the Contract Confirmation is erroneous, either Party may file a written objection to the other Party within three working days from the date of Contract Confirmation. If no written objection is provided by either party, the e-mail shall serve as evidence of the terms of the Contract.
10.02 Additional Contract Terms: In addition to the Contract Confirmation, these Participant Contract Terms and Conditions shall be made part of the Contract and shall set forth the understanding between the Seller and Buyer except where the Parties have expressly agreed in a separate written agreement to different or additional terms, in which case such different or additional terms of that written agreement shall apply.
10.03 Representations and Warranties: Seller represents, warrants and covenants that: (i) the goods (and the manufacture, packaging, storage, handling, transportation and delivery thereof) supplied:
Packaging: The packaging shall be provided with the brands and wording legally required in the country of origin. The packaging shall also feature the brands and wording that the Buyer stipulate in writing upon inception of the Contract. The costs associated with meeting the requirements for packaging, labeling, stamping and palletizing established upon inception of the Contract shall be borne by the Buyer.
Buyer's Instructions; Documents;
Delivery: The transport and delivery terms employed in quotations, contracts of sale or confirmations of purchase shall be interpreted in accordance with the description provided in the INCO terms applicable at the time of the Contract, in so far as not otherwise provided in said documents. If delivery in installments is agreed upon, the called or delivered quantity shall be considered to constitute a separate Contract in respect of the quality and other properties of the goods delivered as well as payment.
10.04 Sampling and Analysis: Buyer may, prior to delivery, have an attested sampler take samples in triplicate in the customary manner. Buyer and Seller may stipulate that said sampling be monitored. If no samples are taken at the time of delivery, sampling may take place later. Assessment and analysis can then only provide an indication of the quality at the time and site of the delivery. In the event of any disputes about quality and/or composition, one of the samples shall be subjected to an analysis by an accredited laboratory as soon as possible and in any event within fourteen days. The findings of the analysis shall be binding, without prejudice to each of the Parties’ right to demand a reappraisal within 10 working days of publication of the findings, which reappraisal shall consist of an analysis of a sample other than the one previously taken, conducted by an impartial laboratory that may be the same laboratory as hereinbefore referred to. The findings of the reappraisal shall be binding upon both parties. The associated costs shall be borne by the party ruled against as evidenced by the final findings of the analyses referred to.
10.05 Acceptance: Buyer will have a reasonable period of time after delivery or performance within which to inspect and accept the goods. Rightfully rejected goods may be returned to Seller or otherwise disposed of at Seller’s cost and expense. Buyer shall make reasonable efforts to mitigate Seller’s loses.
10.06 Price and Taxes: Price and delivery terms are as agreed in the Contract Confirmation. Unless otherwise agreed, the price includes (i) all costs to comply with the Participant Contract Terms and Conditions, (ii) any and all taxes, including sales, use, excise, value added and other taxes, and (iii) fees, duties, or other governmental impositions on the sale of the goods. If Buyer or Buyer’s customer is required to pay any taxes or other impositions, Seller will promptly reimburse Buyer. Notwithstanding the foregoing, Buyer shall pay G.S.T./H.S.T. and provincial sales tax, if applicable.
10.07 Invoicing and Payment: Seller will invoice Buyer for the amounts due. Except as otherwise agreed, Buyer will pay Seller all amounts due as agreed in the Contract Confirmation. Payments may be withheld by Buyer on account of defective goods not remedied.
10.08 Retention of Title: Any and all goods delivered by Seller to the Buyer shall remain the exclusive property of the Seller until all the Seller’s receivables relating to goods delivered or to be delivered have been fully settled and until any receivables due to non-fulfillment of such Contract (including expenses and interest) have been fully settled. Goods that are subject to a retention of title for the Seller shall in no event be sold.
10.09 Premature Cancellation: If any of the Parties should default or continue to default on fulfilling any of their obligations towards the other Party with regard to the term of delivery or credit term, or in the event of their moratorium, bankruptcy, death or liquidation, the other Party shall be entitled to cancel the Contract in whole or in part without any notice of default or intervention of the court by means of written notice being required, without prejudice to the right to claim damages.
10.10 Complaints and Liability: If, upon delivery, an item delivered does not meet the standards set out in the Contract because it displays a defect in quality and/or composition, any complaints about it shall only be taken into consideration if submitted to the Seller in writing within six weeks of delivery.
10.11 Confidentiality: Buyer and Seller agrees to keep confidential the terms and conditions of the Contract.
10.12 Risk of Loss: Except as otherwise set forth in the delivery terms on the face of the Contract Confirmation or if otherwise agreed to in writing between the Parties, Seller will retain the risk of loss and/or damage to the goods until the goods are physically delivered to Buyer at the delivery point agreed by the Parties.
10.13 Indemnification: To the fullest extent permitted by law, each Party agrees to indemnify and hold harmless the other Party, its affiliates and their directors, officers, employees, agents, and representatives from and against any and all liability, loss, damage, fine, cost or expense (including reasonable attorneys’ fees) to the extent arising out of or resulting from (i) such Party’s delivery of non-conforming good; (ii) such Party’s alleged or actual, direct or contributory infringement or misappropriation of any patent, copyright, trade secret or other proprietary right; (iii) such Party’s breach of any term or condition contained in the Contract; the (vi) such Party’s negligent acts or omissions, or willful misconduct.
10.14 Failure to Perform: In the event of a Party’s failure to perform any of its obligations hereunder, the non-breaching Party may, at its option, recover from the breaching Party any losses including reasonable attorneys’ fees, and any other actual damages, and may exercise all rights and remedies as may be available.
10.15 Force Majeure: Each Party may be excused from a failure to perform or a delay in performance, in whole or in part, in the event of, and to the extent that, acts of God, disease, war, riot, fire, explosion, accident, flood, sabotage, compliance with governmental laws or regulations, change of governmental law or regulation, orders or action, national defense requirements, or any other event beyond the reasonable control of such Party which prevents the manufacture, shipment, acceptance or use of any goods or services hereunder (each a “Force Majeure” event). However, this section is not intended to buffer a Party against the normal risks inherent in commercial contracts, including strikes or personnel disputes within the Party claiming Force Majeure. If possible under the circumstances, the Party claiming excuse from performance must take reasonable efforts to remove the cause of its inability to perform or its delay in performance. The Party claiming excuse from performance must give prompt written notice to the other Party of such event, specifying its nature and anticipated duration. Notwithstanding, if as a direct result of a Force Majeure Event, either Party fails to carry out or observe any of the terms and conditions of the Contract, such failure or omissions shall not be deemed a breach, and the affected Party’s obligations may be suspended insofar as the Parties agree that performance of such obligation is impracticable. Further, the Party claiming excuse from performance shall be responsible for insuring against any damage or loss incurred due to delay. Nothing in this section shall alleviate the Party claiming excuse from performance for loss or damage to any goods in its possession. If Seller’s or Buyer’s performance is excused or delayed for more than 30 calendar days, Buyer may, at Buyer’s option, terminate the Agreement by giving written notice, which termination will become effective upon receipt of such notice. If Buyer terminates the Order, Buyer’s sole liability will be to pay any balance due for conforming goods and services delivered by Seller before receipt of Buyer’s termination notice. If delivery in installments is stipulated, these provisions shall apply to each individual installment.
10.16 Origin Control Clause: Seller represents and warrants that neither it nor any person or entity that owns or controls it is a designated target of economic trade sanctions promulgated by the US, EU, UN, or the country of origin of the goods (Sanction Laws). Seller undertakes (i) that Seller and its agents and representatives will fully comply with all applicable Sanction Laws in their performance hereunder; and (ii) that the goods will not directly or indirectly originate from, be provided by or be transported on a vessel, or with any carrier, owned, controlled, flagged or chartered by any country, person or entity that would cause Buyer, or any US parent company of Buyer, to be in contravention of applicable Sanction Laws. Seller agrees to cooperate with Buyer’s reasonable requests for information or documentation to verify compliance with this clause.
10.17 Governing Law: The laws of the jurisdiction of the address of the Buyer on the face of the Confirmation Contract, disregarding any conflict of law rules in that jurisdiction, will govern the Contract. Any dispute arising from the Contract will be resolved in the courts in the jurisdiction of the Buyer.
10.18 Exclusion of Conventions: The following international conventions will not apply to the Contract: (i) Uniform Law on International Sale of Goods and Uniform Law on Formation of Contracts for International Sale of Goods, both concluded at the Hague on 1 July 1964, (ii) United Nations Convention on Contracts for International Sale of Goods of 1980 and (iii) United Nations Convention on Limitations Period in the International Sale of Goods, concluded in New York on 14 June, 1974, and Protocol Amending the Convention on Limitations Period in the International Sale of Goods, concluded in Vienna on 11 April, 1980.
10.19 Waiver: A Party’s failure or delay in exercising any right or remedy will not operate as a waiver of that right or remedy. Any waiver of a right or remedy must be in writing.
10.20 Assignment/Subcontracting: Neither Party may assign or subcontract its rights and obligations under the Contract without the prior written consent of the other Party.
10.21 Severability: If any provision of the Contract is held by any court to be invalid, illegal or unenforceable, either in whole or in part, that holding will not affect the validity, legality or enforceability of the remaining provisions, or any part thereof, of the Contract, all of which will remain in full force and effect.
10.22 Applicable Law: Any and all Contracts entered into by and between the Parties shall be governed by the law of the state of Buyer’s address as shown on the Confirmation Contract.