VALENCE SURFACE TECHNOLOGIES LLC AND AFFILIATES
STANDARD TERMS AND CONDITIONS
Definitions: (a) “Affiliate” means a business entity directly or indirectly controlling (i.e. parent company), controlled by (i.e. subsidiary), or under common control with (i.e. sister company) a specified person or entity where “control” means the possession, directly or indirectly, of the power to direct the management and policies of such person or entity whether through the ownership of voting securities or otherwise; (b) “Material” means all items, parts, equipment, or goods supplied by Customer to Provider for the performance of Services; (c) “Provider” means Valence Surface Technologies LLC or any of its Affiliates; (d) “Customer” is any person or entity that requests Services from Provider as described on an Order and which Order has been accepted by Provider; (e) Customer and Provider may be referenced as a “Party” or collectively as the “Parties”; (f) “Services” means the processing, finishing or other services performed by Provider pursuant to an Accepted Order; (g) “Terms” means these Standard Terms and Conditions; and (h) the word “including” means “including without limitation.”
- Customer Order. All Services must be requested on a written Customer Order (“Order”) and identify any prior quote or proposal given by Provider to Customer (“Proposal”). Each Order must identify any related release or revision, including part number, quantity, material type and condition, specification for processing, revisions, part prints, part revisions, regulation (ITAR/EAR), classification, grade, finish code, type, job number, item number, end user (if applicable), masking requirements, critical dimensions, tolerances, previous re-work performed, packaging requirements, and any other information which would be material to Provider’s consideration and acceptance of the Order.
- Acceptance of Order. Provider’s communications and negotiations with Customer, submission of proposed terms of service (whether oral or written), receipt of an Order or Material (or both) from Customer, or the inadvertent commencement of work on Customer’s Material shall not be deemed Provider’s acceptance of the Order on any Customer terms requested or otherwise submitted to Provider. PROVIDER’S ACCEPTANCE AND AGREEMENT TO PERFORM SERVICES FOR CUSTOMER REGARDING AN ORDER (AN “ACCEPTED ORDER”) IS EXPRESSLY LIMITED TO CUSTOMER’S ACCEPTANCE OF THESE TERMS AND DOES NOT INCLUDE ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY CUSTOMER OR ANY ATTEMPT BY CUSTOMER TO VARY THESE TERMS. Any additional or different terms or conditions proposed by Customer are unacceptable to Provider, are expressly rejected by Provider, and will not become part of the Accepted Order. Any reference in an Accepted Order to any Proposal is solely to incorporate the description, specifications, or price of the Services in the Proposal, but only to the extent that the description, specifications, or price in the Proposal does not conflict with the description, specifications, or price of the Services in the Accepted Order.
Any price provided by Provider on a Proposal is valid for 90 days from the Proposal date, is subject to minimum lot charges, certification fees, ITAR/EAR compliance fees, and is valid only for the scope of Services, including applicable testing specifications as specified on such Proposal. Provider may withdraw or modify any Proposal at any time prior to Provider’s acceptance of an Order. Provider is not obligated to perform any additional work beyond the scope of an Accepted Order, unless otherwise subsequently agreed in writing. Provider is not responsible for Customer’s failure to accurately describe the requested Services in an Order, or any discrepancies between an Order and any published specifications. Provider reserves the right to modify any Proposal that was based on Customer-supplied materials in the event Customer is unable to actually supply such materials. Any special tools, racks, or fixtures supplied by Provider in connection with an Accepted Order shall remain the property of Provider, regardless of whether Customer is charged for such materials, labor, or other charges in connection with such special items.
- Shipment/Risk of Loss/Packing/Hazards. The Material shall remain for the account and at the sole risk of the Customer during transportation to and from Provider’s facility, during loading and unloading, and while located at Provider’s facility. Provider does not accept any liability for loss or damage to the Material while at Provider’s facility caused by theft, vandalism, or acts of nature, including fire, earthquake, tornado, explosion or water. Provider has no responsibility for insuring the Material. Customer agrees that if the Material is damaged while in transit in Provider’s vehicles or during loading or unloading by Provider’s personnel and if Provider was responsible for such damage, then Provider’s liability to Customer (or to any other person or entity) for the damaged Material shall not exceed the lesser of the fair market value of the Material or $10,000. Customer warrants that the Material will not present any hazard to Provider’s facility, vehicles, equipment or personnel.
Provider shall prepare and pack Material for shipment from Provider’s facility in accordance with good commercial practices. Any special packaging required (above D37520 Part Preservation and Protection Standards) must be specified in the Order, and Provider reserves the right to adjust pricing based on special packaging requirements. Unless otherwise agreed by Provider in writing, Customer is responsible for shipment of the Material to and from Provider’s facility and for payment for such transportation. If Provider must ship the Material in a more expensive manner to comply with Customer’s requested delivery date, Customer shall pay all increased costs. Customer is responsible for all packaging of Material and Provider shall have no liability for any loss or damage that is the result of Customer’s loading or packaging of the Material.
- Limited Warranty. Provider expressly warrants and represents to Customer that all Services shall: (a) conform to the terms of the Accepted Order; (b) be free from defects in workmanship; (c) be properly contained, packaged, marked and labeled; (d) be performed diligently in a good and workmanlike manner; and (e) comply with all applicable laws, rules and regulations. Customer shall immediately inspect the Material upon return to Customer. All claims for breach of warranty (“Warranty Claim”) must be delivered in writing to Provider prior to the earlier of (i) 90 days following completion of the Services or (ii) the time that the Material is used or sold to others and before any further processing, assembling or other work has been performed on the Material (“Warranty Period”). Upon receipt of a valid Warranty Claim, Provider, at its sole option, will either re-perform the Services, issue credit memos, or reimburse Customer in an amount up to (but not exceeding) three times the amount of the initial charges made by Provider for the work performed that gave rise to the Warranty Claim. This warranty is void if the Warranty Period has expired or if the Material is misused, abused, or modified following delivery to Customer.
Customer agrees to accept the limits of liability as expressed in these Terms to the exclusion of, and which shall be deemed to supersede, any and all provisions contained in any oral or written invoices, purchase orders, communications or documents previously or subsequently delivered, communicated or submitted by Customer, including any descriptive literature pertaining to the Services, procedures, workmanship, facilities or techniques of Provider. If Customer desires to propose alternative limitations of liability, any such changes must be agreed in writing and signed by an officer of Provider before work commences and in such event, a higher charge will be imposed by Provider to account for the higher risk to Provider.
Provider shall have no liability for alleged shortage in Material weight or count unless a written claim is delivered to Provider within five (5) working days after receipt of such Material by Customer and then only in the event such shortage in weight or count, if any, is verified by Provider. Provider shall have no liability for shrinkage, expansion, deformity or rupture of the Material resulting from Services performed by Provider; nor in any case for damage caused by or occurring during subsequent grinding, treatment or use by others. Customer agrees to pay Provider for any additional expense incurred as a result of Customer’s failure to plainly and correctly indicate the composition of the Material (e.g. make, brand and grade) to be treated. Customer shall be solely responsible for all crating, freight, and other charges for round trip transportation of any Material that becomes the subject of any Warranty Claim to the place designated by Provider for inspection and for all transportation costs to ship the Material to and from Provider’s facility.
Customer agrees that rack marks (including quantity, size, and location) are permissible unless specifically provided otherwise in the Accepted Order. In the event Customer is dissatisfied with the results of the Services and such dissatisfaction is due to metal imperfections, changes in grade or composition of materials, manufacturing and or fabrication imperfections, dimensional changes due to shot peening, usages for which the plating or other finishing operation was not reasonably designed, and similar variables over which Provider has no reasonable control, Customer shall not be entitled to reject such Material and shall pay the amounts due for Services performed on such Material. Where Services performed by Provider are in the nature of “salvaging” Material is experimental or prototype, the work is accepted on a “best efforts” basis and Provider shall have no further liability with respect to such Material.
PROVIDER MAKES NO WARRANTY, EITHER EXPRESSED OR IMPLIED, THAT THE MATERIAL UPON WHICH IT PERFORMS SERVICES SHALL BE MERCHANTABLE OR FIT OR SUITABLE FOR ANY PARTICULAR USE OR PURPOSE. PROVIDER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, EXCEPT AS IS EXPRESSLY SET FORTH IN THESE TERMS, ALL SUCH OTHER WARRANTIES BEING EXPRESSLY DISCLAIMED. IN THE EVENT PROVIDER IS LEGALLY LIABLE FOR ANY CAUSE OR REASON WHATSOEVER, INCLUDING FOR BREACH OF WARRANTY (AND PROVIDER ELECTS NOT TO RE-PERFORM THE SERVICES), OR FOR NEGLIGENCE OR STRICT LIABILITY, THE SOLE AND EXCLUSIVE LIABILITY OF PROVIDER AND THE EXCLUSIVE REMEDY OF CUSTOMER OR OTHER DAMAGED PERSON OR ENTITY SHALL BE THE RECOVERY OF AN AMOUNT UP TO BUT NOT EXCEEDING THE LESSER OF (A) THREE TIMES THE AMOUNT OF THE CHARGES BY PROVIDER FOR THE SERVICES PERFORMED THAT GAVE RISE TO THE LIABILITY OR (B) $10,000. ANY PAYMENT BY PROVIDER TO CUSTOMER SHALL CONSTITUTE FULL PAYMENT FOR AND SHALL BE INCLUSIVE OF CHARGES PAID BY CUSTOMER FOR THE ACCEPTED ORDER AND ALL DAMAGES SUSTAINED BY CUSTOMER OR OTHER DAMAGED PERSON OR ENTITY, WHETHER ACTUAL, GENERAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, SPECIAL OR OTHERWISE.
- Price/Invoices/Set Off. Invoices will be submitted to Customer immediately upon performance of the Services or return of the Material. Subject to Provider’s credit approval of Customer and unless otherwise specifically stated in the Accepted Order, Customer’s payment for all undisputed amounts shall be net 30 days from the date of Provider’s invoice. Customer agrees to pay any excise, sales, gross receipts, use, occupation, or other tax levied upon any service, contract, shipment or delivery and to be responsible for compliance with all applicable import/export laws of the United States and any foreign country regarding the Material when transported to and from Provider’s facility.
Customer agrees that Provider’s invoice(s) for each Accepted Order must be paid timely and in full and no deduction or set off for any claims against Provider resulting from the Accepted Order or any other transaction will be taken. If Customer disputes the accuracy or applicability of a charge on any invoice in a timely manner, Customer agrees to pay the undisputed portion of the invoice in accordance with the above terms, and will notify Provider of such disputed amount within 10 days of the receipt of the invoice at issue. Any amounts not disputed within this time period will be deemed payable by Customer. Provider may, at its option, following a failure by Customer to pay an invoice in a timely manner (a) impose a late fee of 5% of the Accepted Order balance, (b) charge interest of 18% per annum on the unpaid balance from the date due until paid, (c) place the account on C.O.D. status, or (d) exercise any other remedies as provided herein or by law. Additionally, Provider shall be entitled to recover its damages and costs, including reasonable attorney fees, from Customer for any action brought to enforce or interpret these Terms or any Accepted Order. Should Customer not pay any valid invoices, Customer grants Provider a security interest in the Material under the applicable Uniform Commercial Code for secured transactions. All rights and remedies of the Parties as provided in these Terms or in any Accepted Order shall be cumulative and not in lieu of each other and may be exercised in any combination as permitted by law or in equity.
- Order Changes. If Customer should request changes to an Accepted Order, Provider shall be entitled to suspend performance of such Accepted Order pending consideration of Customer’s proposed changes. Provider will accept such changes to the extent it has, in its sole discretion, the capability and capacity to do so, and the Parties agree to any such changes, including price and delivery time. At a minimum, Provider shall be entitled to recover, without duplication, the contract price for any Material that has been completed, the actual costs incurred by Provider which are properly allocable or apportionable under recognized commercial practices to terminate work (including the costs of discharging liabilities) plus a reasonable profit, and the reasonable costs and expenses incurred by Provider. All revisions to an Accepted Order must be in writing and signed by both Parties.
- Indemnification. Customer and its Affiliates agree to defend, indemnify and hold Provider, its Affiliates and their respective shareholders, members, managers, directors, officers, employees, agents, servants and other vendors harmless from and against any and all claims, demands, actions, causes of action, proceedings, judgments and other liabilities, obligations, losses, damages, costs and expenses (including reasonable attorneys’ fees and costs) of any nature to the extent they are due to or arise in whole or in part and directly or indirectly from: (a) the breach of any representation, warranty or obligation contained in these Terms by Customer; or (b) the negligence, negligent omissions, intentional or willful misconduct of Customer, its Affiliates or any of their respective directors, officers, managers, members, employees, agents, servants, contractors and other vendors.
- Confidentiality. Provider and Customer realize that in connection with the provision of the Services, each Party may furnish the other certain of its trade secrets and other confidential information (meaning such information as has been identified as confidential, was not already known to the other and is not publicly known or available unless through the fault of the other). Both Provider and Customer agree to maintain the other’s confidential information in strict confidence and not to disclose it to any third party or use it without the prior written consent of the other Party. The foregoing provisions shall be subject to the terms of any other written agreement executed by the Parties relating specifically to confidentiality, non-disclosure and/or publicity.
- Termination for Cause. If either Party commits a material breach of the Accepted Order, the non-breaching Party shall give notice to the other Party of such breach. If such breach is curable, the breaching Party shall cure such breach within 30 days following receipt of such notice. If the breaching Party fails to cure such breach within 30 days (except for nonpayment of undisputed invoices for which there is no cure period), or if such breach is not curable, the non-breaching Party shall have the option to terminate the Accepted Order upon notice to the breaching Party and exercise any other remedy permitted by these Terms or by law. In the event the Customer becomes insolvent or makes a general assignment for the benefit of creditors, or files a petition in bankruptcy or pursues any other remedy under law relating to the relief of debtors, or in the event a receiver be appointed of Customer’s property or business, Provider may, at its option, immediately terminate its performance under the Accepted Order.
- LIMITATION OF LIABILITY. PROVIDER SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY ANTICIPATED OR LOST PROFITS, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR PENALTIES, WHETHER BASED UPON INDEMNIFICATION, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, PROVIDER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES OR FOR THE BREACH OF ANY OBLIGATION OWED TO CUSTOMER UNDER THESE TERMS OR PURSUANT TO ANY ACCEPTED ORDER.
WITHOUT LIMITING THE FOREGOING, PROVIDER’S LIABILITY TO CUSTOMER ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THE PERFORMANCE OF SERVICES BY PROVIDER OR THE BREACH OF ANY OBLIGATION OF PROVIDER OR IN ANY ACCEPTED ORDER (WHETHER ARISING IN TORT, PRODUCTS LIABILITY, STRICT LIABILITY, CONTRACT OR OTHERWISE, INCLUDING ALL LIABILITY RESULTING FROM ANY INDEMNIFICATION OBLIGATIONS SET FORTH IN ANY DOCUMENT OR OTHERWISE), SHALL IN NO CASE EXCEED THE LESSER OF (a) THREE TIMES THE PRICE ALLOCABLE TO THE SERVICES GIVING RISE TO THE CLAIM, OR (b) $10,000. CUSTOMER AGREES AND ACCEPTS THAT ALL PRICING GIVEN TO CUSTOMER BY PROVIDER IS BASED ON THE LIABILITY LIMITS CONTAINED IN THESE TERMS.
- Governing Law/Dispute Resolution. Each Accepted Order shall be deemed executed and to be performed in the state where the Services are performed and shall be governed by and construed in accordance with the laws of that state (without regard to its conflict of laws provisions) and shall govern all disputes, controversies, or claims arising out of or related to the Accepted Order (including tort claims) (collectively the “Claims”). With respect to any judicial proceeding commenced by either Party, the Parties acknowledge and agree that the execution and performance of the Accepted Order constitutes the making of a contract within the state where the Services are performed and the Parties expressly and irrevocably consent and submit to the jurisdiction of any state or federal court in the judicial district where such Services are performed and agree that to the fullest extent allowed by law, only such courts to the exclusion of all others shall have jurisdiction over any such proceeding, and each Party irrevocably waives to the fullest extent allowed by law any objection such Party may have to the laying of venue of any such proceeding brought in any such state or federal court based upon a contention that such court is inconvenient or otherwise an objectionable forum. All Claims shall be settled by arbitration in the city and state where the Services were performed under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”); provided, however, that if Provider commences an action to collect an unpaid invoice and Customer contends that Provider did not perform Services as agreed, then Provider’s commencement of the judicial proceeding shall not be deemed a waiver of its right of arbitration and any action shall be stayed to permit arbitration of the Claim. Judgment on the award by the arbitrator may be entered in any court having jurisdiction. In the event that a Party requires interim relief, this arbitration provision shall not apply to the extent a Party needs to seek such interim relief from the appropriate court under this provision. If any action at law or in equity, through arbitration or otherwise, is necessary to enforce the provisions of any Accepted Order, the prevailing Party shall be entitled to reasonable attorney’s fees, costs and expenses, in addition to any other relief to which such prevailing Party may be entitled.
- General Conditions. Each Accepted Order shall inure to the benefit of and be binding upon the Parties and to their respective successors and legal representatives. No provision of any Accepted Order including any of these Terms will be waived by any Party except in a writing signed by an authorized representative of the waiving Party. The waiver by any Party of a breach of any provision of an Accepted Order shall not operate or be construed as a waiver of any subsequent breach of that provision by the same Party, or any other provision or condition of such Accepted Order. If any provision or application of an Accepted Order shall be held invalid or unenforceable, such part will be treated as severable, and the remaining provisions and applications of the Accepted Order shall not be affected but rather shall remain valid and enforceable. Acceptance of the Services by Customer, and payment for the Services to Provider shall constitute a bill of sale and all rights and title to the Services shall pass to Customer, free from any encumbrances. Those obligations or responsibilities contained in each Accepted Order, regardless of whether rights and title to the Services have passed to Customer, which are continuing in nature, shall survive the expiration or termination of such Accepted Order.
- Entire Agreement. These Terms and the terms regarding the price, description and specifications of the Material and Services in the Agreed Order constitute the entire agreement between the Parties regarding each Accepted Order, and replaces and supersedes all prior and contemporaneous agreements, proposals, representations and communications, written or oral, between the Parties, and cannot be amended or modified, in whole or in part, except pursuant to a written instrument signed by both Parties.
- Force Majeure. Provider shall not be responsible for delays in performance due to war, acts of God or of the public enemy, acts of government, fire, floods, strikes, labor trouble, interruption of utilities, inability to obtain supplies or fuel, sabotage, freight, equipment problems and transportation and other delays or causes beyond its reasonable control.
- Supplies and Equipment. All Material, supplies, or equipment furnished by Customer in connection with an Order or Accepted Order shall remain Customer’s property (title shall not transfer to Provider) and shall be used by Provider only for performance of the Services.
- Provider’s Risk. Provider agrees that its employees and subcontractors are performing services as independent contractors and not as Customer’s employees, regardless of where and how they perform services. Provider shall be fully responsible for its employees, agents, officers, contractors and subcontractors, including all related compensation and taxes.
- Miscellaneous. Customer acknowledges that Provider’s business is primarily providing services similar to the Services and that Provider has developed expertise and know-how over time that may be useful in providing the Services for Customer. Customer further acknowledges that Provider may perform the Services (including services the same or similar as those provided to Customer and including services to the same or similar products as those of Customer) in the normal course of its business for its other customers, without restriction. If the Parties, individually or jointly, become involved in research or development activities or if Provider is asked by Customer to provide suggestions for improvements to the Material or Services, the Parties agree to negotiate and execute a “Joint Proprietary Information Agreement” setting forth the rights and obligations of each Parties relating to such activity before Provider will be expected to commence such actions.
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