1. Acknowledgement.

The sales of any Products, Services, and/or Support Services by Fermer Precision (“Supplier”) to the “Customer” is herein governed exclusively by these Terms and Conditions of Sale. Supplier’s acceptance of Customer’s Purchase Order is expressly conditioned upon Customer’s agreement to these Terms and Conditions. Supplier hereby expressly objects to any deletions, modifications, alterations or additions to these Terms and Conditions. Any such revisions may be binding only if they are in writing and signed by the authorized representative of Supplier.

These Terms and Conditions shall apply to all sales of Products, Services, and or Support Services between Fermer Precision and Customer until such time as Fermer Precision issues a revised Terms and Conditions, or unless expressly agreed to in writing.

2. Definitions.

a. “Product(s)” shall means all items (parts) or components, and assemblies Supplier provided to the Customer, regardless of whether or not the material used for such component is provided by the Customer or the Supplier.

b. “Purchase Order” means written communication and/or electronic submission that Customer shall submit to Supplier for approval for purchase of Product. The Purchase Order shall include the Customer’s order number, quantity and type of Product ordered descriptions, shipment information and instructions, and invoice information.

c. “Services” means any professional services provided to Customer described in an applicable Statement of Work and/or proposal. Examples would include but not be limited to engineering charges, tooling and fixturing charges (including build and maintenance), set-up charges, programming charges, special packing or packaging charges, inspection charges and/or certain inspection tools or devices.

d. “Defects” is to include quality inconsistencies and/or non-compliances including but not be limited to those commonly referred to as:

Pinholes
Open shrinkage
Fusion
Drops
Cold shut/lap
Slag inclusion

Subsurface blowholes
Closed shrinkage
Run out/Warpage
Tears/cracks
Misruns
Shift/mismatch

Open holes
Cuts and washes
Swells
Hot/Hard Spots
Cold shots
Flash, fin, burrs

3. Payment Terms. Payment Terms are Net 30.

All payment terms are subject to prior credit approval by Supplier. Supplier may reject any purchase order, change its credit terms, suspend performance or cancel any accepted Purchase Order, it is sole discretion when, in Supplier’s reasonable determination, Customer’s financial condition so warrants.

4. Shipment and Risk of Loss.

Product will be shipped to Customer’s shipping address or as agreed and specified in the Purchase Order. All Products shall be deemed to have been delivered to Customer upon shipment. Shipping terms are EXW Fermer Precision, Inc., Ilion NY.

Any loss of or damage to the Products shall be at the risk of Customer from the date the Products are tendered to the carrier in Ilion, NY. Customer shall insure the Products against loss or damage as appropriate. Customer shall be responsible for all shipping and handling costs.

5. Cancelation, Changes to Purchase Order, or Customer-specified Production Halt.

Purchase Orders may not be amended, canceled or production delivery schedules and quantities by the Customer once confirmed. Supplier may allow such amendments, cancellation, and partial cancellation of a Purchase Order in its sole discretion. Supplier retains the right at its sole discretion to assess Customer with additional charges including but not limited to those for material, unamortized tooling, handling, production, set-up, programming, inspection, outside costs or other costs associated with re-initiating production. Such charges do not constitute a waiver of any rights Supplier may have under law.

6. Customer-Provided Materials.

Supplier shall not be responsible for Defects or quality non-conformities in materials (i.e. castings, forgings, bar stock) supplied directly or indirectly to Supplier by Customer or agents acting on behalf of Customer. Customer accepts all responsibilities for insuring that such materials conform to its specifications and quality levels. Supplier reserves the exclusive right to charge customer for any and all costs incurred, including but not limited to those associated with labor, machining time, inspection time expended on such materials determined to be Defective at any point during production. Supplier reserves the right at its sole discretion to temporarily or permanently halt production should it observe a Defect rate exceeding five percent (5%) Defect rate in materials supplied under this Section.

Supplier retains the right at its sole discretion to assess Customer with additional charges including but not limited to those for set-up, programming, inspection or other costs associated with re-initiating production. Such charges do not constitute a waiver of any rights Supplier may have under law.

Supplier shall not be responsible for any latent effects or defects observed in provided Product(s).

7. Claims.

e. Shortages. Customer must notify Supplier in writing within five (5) days of receipt of shipment of quantity shortages.

f. Repairs & Inspections. Subject to Indemnification and Limitations of Liability set forth in these Terms and Conditions of Sale, Supplier will not be responsible for any costs of repair, replacement or inspection by Customer or its agents absent prior written authorization from Supplier.

g. Specification Changes. Supplier shall have no responsibility for Product further processed by Customer or its agents resulting in changes in dimensions or characteristics from Product ordered.

8. Confidential Information.

Information that is to be treated as Confidential under this Agreement shall (i) be disclosed in tangible form (including electronic form) and marked by the Disclosing Party as “Confidential,” “Proprietary” or other appropriate legend indicating the confidential nature of the information or (ii) be disclosed orally or visually and be identified by the Disclosing Party as confidential and then summarized in tangible form, marked in accordance with Section (i) above, and delivered to by the Receiving Party within thirty days after the date of first disclosure.

Confidential information includes (i) samples and prototypes and (ii) information, in any form or medium, regarding pricing, customers and prospective customers, vendors and vendor lists, costed bills of materials, processes (including but not limited to manufacturing processes), know-how, designs formulae, computer programs, databases, methods of operation, sales techniques, business methods or plans, marketing plans and strategies, finances, management, plant and equipment, or any other business information relating to the Disclosing Party, whether constituting a trade secret, proprietary information or otherwise, which has value to the Disclosing Party and is treated by the Disclosing Party as being confidential.

Information in the following categories shall not be considered Confidential Information under this Agreement:

(a) Information which is in the public domain at the time of the receipt under this Agreement;

(b) Information which the Receiving Party can show was in the Receiving Party’s possession before the date of disclosure under this Agreement;

(c) Information that the Receiving Party can show was acquired by the Receiving Party from a third party who was not known by the Receiving Party to be under an obligation of confidence to the e Disclosing Party; and

(d) Information which the Receiving Party can show was independently developed by the Receiving Party.

9. Governing Law

These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law principles. Supplier and Customer agree that the state courts of Herkimer County, New York and the federal courts located in the Northern District of the State of New York shall have exclusive jurisdiction and venue to adjudicate any and all disputes arising out of or in connection with this Agreement. Supplier and Customer consent to the exercise by such courts of personal jurisdiction over them and each Party waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar or related doctrine.

10. Compliance with Laws.

Both Supplier and Customer shall comply with all applicable federal, state, and local laws, rules, and regulations.

11. Indemnification and Limitation of Liability.

Supplier has no obligation and liability if the claim for infringement is due to a product design according to the requirements of the Customer, Customer’s use of the Product in combination with other equipment caused the infringing traits, Customer modified the Product without Supplier’s knowledge and written consent, or if Customer failed to notify the Supplier and continued to use the infringing product after it became aware of the alleged infringement.

SUPPLIER SHALL NOT BE HELD LIABLE FOR ANY CLAIMS ARISING FROM ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES by reason or any act or omission or arising out of or in connection with the Products or their sale, delivery, warranty, maintenance, operation, performance or use, including but not limited to loss of business or goodwill, stoppage of work or impairment, lose revenues, income or profits, costs of capital, damage to associated products or equipment, damage to facilities, cost of substitute products, costs to remove or reinstall products, and costs associated with any down time.

Supplier’s liability will in no event exceed the cost of the Product or service provided as per the VALUE OF SAME as enumerated in the accepted purchase order.

12. Waiver.

Neither Supplier’s nor Customer’s failure to enforce any of the provisions within these Terms and Conditions shall be construed as a waiver of such provision or the right to enforce any of these provisions at a later time.

13. Relationship of Parties.

No agency, partnership, joint venture, or other business organization is created by these Terms and Conditions. Neither party has the authority to make commitments of any kind for, or on behalf of, the other party.

14. Force Majeure.

Supplier shall be held liable for any failure to perform or delay in the performance of its obligations if such delay is caused by reason of acts of God (floods, earthquakes, hurricanes, etc), epidemics, strikes, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government, or any other circumstances beyond the reasonable control and not involving any fault or negligence on the part of the delayed party.

15. Assignment.

Neither this these Terms and Conditions nor any rights or obligations hereunder shall be transferred or assigned by either Supplier or Customer without the written consent of the other Party, which consent shall not be unreasonably withheld or delayed.

16. Illegal, Invalid, or Unenforceable Provisions.

If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.

17. Entire Agreement.

These Terms and Conditions contain the complete and exclusive Agreement between Supplier and Customer, and it is intended to be the final expression of their Agreement. No promise, representation, warranty or covenant not included in this document has been or is relied upon by any Party. Each Party has relied upon its own examination of the warranties, representations and covenants expressly contained in these Terms and Conditions. No modification or amendment of these Terms and Conditions shall be of any force unless agreed to in writing by Supplier and Customer.