VALENCE SURFACE TECHNOLOGIES, LLC AND AFFILIATES
STANDARD QUOTE/PROCESSING TERMS AND CONDITIONS FOR SERVICES PROVIDED “Terms”
As used herein: (a) “Affiliate” means a business entity directly or indirectly controlling (i.e. parent), 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) “Provider” is Valence Surface Technologies, LLC or its Affiliates identified on a purchase Order to provide Services for Customer, and (c) “Customer” or “Buyer” is any person or entity that has engaged Provider to provide Services as described on an Order. Provider, Customer, and Buyer may be referred to herein as “Party” or collectively as the “Parties”. Whenever the word “including” is used herein, it shall mean “including, without limitation”. All Services for Customer by Provider must be requested on a Customer Order, and show any proposal id if provided by Provider. Customer is responsible for providing a purchase order, and any release or revision related hereto, 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, or requirements, any previous re-work performed, packaging requirements, and notes if parts are fracture critical and have undergone any special bake or heating processes prior to arrival at Provider, (collectively, the “Order”).
1. Acceptance. Provider’s(a) execution of a Customer’s purchase Order or any release or revision related hereto for materials and Services related to (b) commencement of work on the materials and/or services to be purchased hereunder (collectively, the “Services”), or (c) shipment of the goods covered hereunder, shall be deemed Provider’s Acceptance of the Order. PROVIDER’S ACCEPTANCE IS LIMITED TO ACCEPTANCE OF THE EXPRESS PROVISIONS OF THESE TERMS AND DOES NOT INCLUDE ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY CUSTOMER OR ANY ATTEMPT BY CUSTOMER TO VARY THE TERMS HEREOF. Acceptance of the Order does not constitute an acceptance of any Customer terms, conditions, counteroffer, or warranties included in the Customer Order, or proposed by Customer in any other manner. Any additional or different terms or conditions proposed by Customer, whether in Customer’s Order, or otherwise, are unacceptable to Provider, are expressly rejected by Provider, and will not become part of the Order unless the additional or different term is specifically identified in the Order and each party has initialed the same to reflect their acceptance thereof. Any reference in the Order to any offer or proposal made by Provider is solely to incorporate the description, specifications, or price of the Services in the prior proposal, but only to the extent that the description, specifications, or price in the proposal does not conflict with the description, specifications, or price in the Order. In the event that descriptions, or specifications on a proposal provided by Provider, and the Order provided by Customer, are in conflict, all Services will be provided according to descriptions and specifications on Order, provided by Customer. Any price provided by Provider on a proposal, is valid for 90 days from date of proposal, are subject to minimum lot charges, Certification fees, ITAR Compliance fees, and valid only for the scope of Services, including applicable testing specifications, specified on such proposal. Any Proposal provided by Provider, may be withdrawn or modified by Provider any time prior to Customer placing an Order based on such proposal. Provider will not be responsible for providing Services beyond the scope of any quoted proposal without additional compensation. Provider is not obligated to perform any additional work beyond the scope of that in a Customer Order accepted by Provider. Provider is not responsible for Customer’s failure to accurately note Services on an Order, or any discrepancies between an Order and any published specifications. Provider also reserves the right to update any proposal estimated based on using Customer supplied materials, in the event that Customer can no longer supply materials. Any special tools, racks, or fixtures, supplied by Provider in connection with an Order, shall remain the property of Provider, regardless if Customer is charged for any materials, labor, or other charges in connection with such special items.
2. Shipment / Risk of Loss / Packing / Hazards. Except as otherwise set forth in this Section 2 or unless otherwise stated in the Order and approved, in writing, by Provider, the Goods 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 Goods 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 Goods. Customer agrees that if the Goods are damaged while in transit in Provider’s trucks or during loading or unloading by Provider’s personnel and if Provider was responsible for such damage, Provider’s liability to Customer (or to any other person or entity) for the damaged Goods shall not exceed the lesser of (a) the fair market value of the raw materials thereof, or (b) $10,000. Customer warrants that the Goods will not represent any hazard, environmental or otherwise, to Provider’s facility or personnel. Provider shall prepare and pack for the Goods 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 defined in the Order, and Provider reserves the right to adjust pricing based on special packaging requirements. Customer is responsible for shipment of Goods to and from Provider’s facility, and will pay all charges for shipping or delivery, unless otherwise stated in the Order and approved, in writing, by the Provider. If Provider must ship in a more expensive manner than specified herein to comply with Customer’s required delivery date, Customer shall pay all increased costs. Notwithstanding the above, Customer is responsible for all packaging of Goods shipped to Provider. Provider shall have no liability for any loss or damage to the Goods that is the result of Customer’s loading or packaging thereof.
3. Limited Warranty. Provider expressly warrants and represents to Customer, its successors, and assigns, that all Services shall: (a) conform to the terms of the Order and/or all applicable samples, drawings, standards, specifications, performance criteria and any other description requested, furnished or provided by Customer; (b) be free from defects in workmanship; (c) together with their packaging, labeling and accompanying materials, 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. It is the duty of the Customer to inspect the Goods immediately upon their return to Customer, and all claims under these Terms must be reported prior to the earlier of (i) 90 days following completion of the Services, or (ii) the time that the Goods are put to use or sold to others and before any further processing, assembling or other work has been done on said Goods (“Warranty Period”). All claims for breach of warranty must be submitted in writing to Provider within the Warranty Period. This warranty is void if the Goods are misused, abused, or modified following delivery of thereof to Customer. PROVIDER MAKES NO WARRANTY, EITHER EXPRESSED OR IMPLIED, THAT THE GOODS 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 HEREIN; ALL SUCH OTHER WARRANTIES BEING HEREBY DISCLAIMED. Provider, at its sole option, will either re-perform the Services following a valid warranty claim 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. 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 damaged person 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, (first, to reimburse for the charges and secondly, as full payment for all damages sustained by Customer or damaged person whether actual, general, incidental, indirect, punitive, consequential, special or otherwise). If Customer desires its own provisions as to liability to be in effect, this must be agreed to in writing, signed by an officer of Provider before any work commences and in such event a higher charge may be imposed by Provider to account for the higher risk to Provider. Provider also reserves the right to issue credit memos to the customer for warranty obligations. Customer, by requesting the Services, agrees to accept the limits of liability as expressed in these Terms to the exclusion of, and shall be deemed to supersede, any and all provisions contained in any oral or written invoices, purchase orders, communications or documents previously or hereafter delivered, communicated or submitted by Customer, including any descriptive literature pertaining to the Services, procedures, workmanship, facilities or techniques of Provider, unless such customer’s provisions are (a) agreed to in writing, prior to the commencement of any work by Provider to which such provisions are to pertain, (b) signed by an authorized representative of Provider, and (c) dated after the date of the presentation of these Terms to Customer. In such event, a different charge for the Services, reflecting the higher risk to Provider, shall be determined by Provider and submitted to Customer prior to the commencement of any work affected by the Customer’s proposed provisions. Provider shall have no liability for alleged shortage in weight or count unless claim therefore is presented within five working days after receipt of the Goods 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 Goods resulting from Services performed by Provider except by written agreement; nor, in any case, for rupture caused by or occurring during subsequent grinding, treatment or use by others. Failure by Customer to indicate plainly and correctly the kind of material (e.g. make, brand and grade of material) to be treated shall cause an extra charge to be made to cover any additional expense incurred as a result thereof. Customer shall be solely responsible for all crating, freight, and other charges for round trip transportation of any Goods that become the subject of any warranty claim to the place designated by Provider for inspection and for all transportation costs to ship the Goods to and from Provider’s plant unless otherwise agreed in writing by Provider. Customer agrees that rack marks are permissible, unless specifically called out on Order, and rack marks are at Provider’s discretion, regarding quantity, size, and location. Notwithstanding the above, in the event that results of metal finishing operations are unsatisfactory 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 control, Customer shall not be entitled to reject such parts or materials and shall pay the amounts due for Services performed on such parts or materials. Where operations or processes performed by Provider are in the nature of “salvaging” parts or material, experimental, or prototype, the work is accepted on a “best effort” basis and Provider shall have no further liability with respect to such parts.
4. Price / Invoices / Set Off. Invoices shall be submitted to Customer immediately upon shipment of the goods or performance of the Services. Payment terms for all undisputed amounts shall be net 30 days from the date of Provider’s invoice, subject to Provider’s credit approval of Customer. Customer agrees to pay any excise, sales, gross receipts, uses or occupation tax or other tax levied upon any service, contract, shipment or delivery incident thereto and to be responsible for compliance with all applicable import/export laws of the United States or any foreign country the Goods come from when delivered to Provider’s facility or that are delivered to after the Services have been completed. Customer agrees that invoices will be paid timely and in full and no deduction or set off for any claims against Provider resulting from the 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 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, and/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 the terms hereof or of any Order. Should Customer not pay any valid invoices, Customer grants Provider a security interest in the Goods under the applicable Uniform Commercial Code for secured transactions. All rights and remedies of the parties hereto as provided in these Terms and/or in any Order shall be cumulative and not in lieu of each other and may be exercised in any combination as permitted by law.
5. Changes. Subject to the remaining provisions of this Section 5, Customer may, at any time prior to delivery, change the specifications for the Services, quantity of the Services, add Services, change quantities and reschedule delivery of Goods under an existing Order. Provider will accept such changes to the extent it has the capability and capacity to do so and provided that if a proposed change increases or decreases the cost or time required for performance, the parties will equitably adjust and modify the terms hereof and in the Order before Provider accepts such changes. Provider shall be entitled to suspend performance of an Order pending reaching an agreement on modifications to the terms of the Order caused by the Customer’s proposed changes. At a minimum, the Provider shall be entitled to recover, without duplication, the contract price for Goods that have 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, the reasonable costs and expenses incurred by Provider in making settlement hereunder and in protecting property in which Customer has an interest, and/or the increased costs incurred by Provider by reason of a revision in the delivery schedule. All revisions to an Order must be in writing and signed by both parties.
6. Indemnification. Customer and its Affiliates agrees to defend, indemnify and hold Provider, its Affiliates and their respective shareholders, members, managers, directors, officers, employees, agents, servants and other vendors (each, an “Indemnified Party”) 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 (collectively, the “Claim”) to the extent they are due to or arise in whole or in party 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.
7. Confidentiality. Provider and Customer realize that in connection with the provision of the Services, each 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 confidence and not to disclose it to any third party or use it without the prior written consent of the other. 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.
8. Termination for Cause. Except as otherwise provided in these Terms, if either Party commits a material breach of these Terms, 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 these Terms immediately upon notice to the breaching Party and/or to exercise any other remedy permitted herein or by law. Notwithstanding the above, in the event the Customer becomes insolvent or makes a general assignment for the benefit of creditors, or files or has filed against it a petition in bankruptcy or for reorganization, 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 Order and treat Customer as in breach of these Terms.
9. Limitation on 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 BY IT OR FOR THE BREACH OF ANY OF THE OBLIGATION OWED TO CUSTOMER UNDER THESE TERMS OR PURSUANT TO ANY 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 HEREIN OR IN ANY ORDER (AND 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 HEREIN.
10. Governing Law / Dispute Resolution. These Terms 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 matters arising out of or related to these Terms and each Order, including tort claims. Venue and jurisdiction for any action based on these terms or any order shall rest exclusively in the city and state where the Services are performed. Any dispute, controversy or claim arising out of the Order, or the breach thereof, that cannot be settled through negotiations between the parties shall be settled (a) first, by the parties trying in good faith to settle the dispute by mediation in the city and state where the Services were performed under the Commercial Mediation Rules of the American Arbitration Association (“AAA”), and (b) if the dispute controversy or claim cannot be settled by mediation, then by arbitration in the city and state where the Services were performed administered by the AAA under its Commercial Arbitration Rules. Judgment on the award by the arbitrator may be entered in any court having jurisdiction thereof. 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 these Terms or any 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.
11. General Conditions. The Order shall inure to the benefit of and be binding upon the parties hereto and to their respective successors and legal representatives. No provisions of the Order will be waived by any party except in a writing signed by an authorized representative of the waiving party. The parties hereto agree that the waiver by any party of a breach of any provision of an 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 Order. If any provision or application of an Order shall be held invalid or unenforceable, such part will be treated as severable, and the remaining provisions and applications of the 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 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 Order.
12. Entire Agreement. Except as (a) provided herein, (b) provided in documentation included with an Order that is not inconsistent with the provisions contained herein, or (c) as otherwise agreed upon by the parties in a separate written agreement signed by both parties, these Terms constitute the entire agreement between the parties regarding each Order, replaces any previous or contemporaneous oral or written representations and communications between the parties related hereto or thereto and cannot be changed except pursuant to a writing signed by both parties.
13. 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.
14. Supplies and Equipment. All materials, supplies, or equipment furnished (or paid for) by Customer in connection with an Order shall remain Customer’s property (title shall not transfer to Provider), and shall be used by Provider only for performance of the Services.
15. Provider’s Risk. Provider agrees that it, 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 compensation and taxes related thereto.
16. Miscellaneous. Customer acknowledges that Provider’s business is primarily providing the Services and that Provider has developed expertise and know-how over many years that may be useful in providing Services to 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 Goods or Services, the parties agree to negotiate and execute a Joint Proprietary Information Agreement setting forth the rights and obligations of each party relating to such activity and the results thereof before Provider will be expected to commence such actions.
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