Definitions
“Seller”: The supplying company identified in the quotation and/or order.
“Buyer”: The party that enters into a purchase agreement with the Seller for the purchase of Product from Seller.
“Product”: Any goods, services or processes purchased by Buyer and shall include the plural.

Applicability These General Terms and Conditions of Sale (these “Terms”) apply to, and are incorporated into, all purchase agreements agreed with Seller, to all Seller’s offers and quotations and to deliveries, sales and services provided by Seller (together with these Terms, the “Contract”). Buyer’s execution of any agreements or orders or acceptance of delivery of any Product constitutes Buyer’s acceptance of all the terms and conditions contained herein, and the exclusion and rejection of any terms or conditions otherwise stated by Buyer or contained in any of Buyer’s documents, offers, acceptances, or contracts that conflict with or limit these Terms. ANY OF BUYER’S GENERAL, PREPRINTED OR OTHER TERMS AND CONDITIONS THAT ARE SET OUT OR REFERENCED IN ANY ORDER RELATED TO THE PRODUCTS OR OTHERWISE ARE EXPRESSLY REJECTED, EXCLUDED IN FULL AND HAVE NO FORCE OR EFFECT. FULFILLMENT OF BUYER’S ORDER DOES NOT CONSTITUTE ACCEPTANCE BY SELLER OF ANY SUCH TERMS AND CONDITIONS AND DOES NOT SERVE TO MODIFY OR AMEND THE CONTRACT. Notwithstanding the foregoing, the terms and conditions of any negotiated written contract covering the sale of the Product signed by an authorized agent of Buyer and Seller prevail over these Terms to the extent they are inconsistent with these Terms. Except as set forth in these Terms, the default terms of the New York Uniform Commercial Code apply to the Contract.

Quotations and Contracts
Any quotation issued by Seller shall not constitute a binding offer. Until an order is expressly accepted by Seller in writing, quoted prices are subject to change without notice. Prices quoted are based on Seller’s labor and material costs as of the date of the quotation. Unless specified otherwise, prices are based upon the quantity released for Seller’s production and/or shipment in one lot. Any order submitted by Buyer constitutes only an offer to enter into an agreement with Seller pursuant to these Terms and the terms of any relevant quotation from Seller.

Orders and Delivery
The minimum order amount is $500.00. If after placement of an order, Buyer reduces quantities, Buyer shall pay Seller any increased cost caused by the manufacturing of a lower quantity. The cost shall be implemented into all parts shipped and any balance of any revised order. Order acceptance may be based on Buyer accepting over-run or under-run on each individual item not exceeding 5% of quantities ordered. Additional charges to Buyer may be applied in the event that material supplied by Buyer does not meet specification and causes additional manufacturing costs to Seller.

Delivery
Seller shall make commercially reasonable efforts to meet stated delivery dates. Delivery after the stated delivery date shall not be a breach of contract by Seller and shall not entitle Buyer to any remedy. Products shall be delivered as set out in the Contract or, in absence of such delivery conditions, “Free Carrier” (FCA) to Seller’s premises. Buyer may request that Seller organizes the transport of the products on Buyer’s behalf, in which case Buyer shall be responsible for all costs and risk associated with such transport. If the parties agree to any variation to the description, design or content of the Products listed on the Contract, Seller may at its discretion amend the delivery date stated in the Contract by providing notice to Buyer, such change in delivery date to be effective immediately on receipt of such notice.

Changes and Cancellations
Seller shall not be responsible for any changes in Product specifications from the Contract unless such changes are confirmed in writing by Buyer and accepted in writing by Seller in Seller’s sole discretion. Any price variation resulting from such changes shall become effective immediately upon the acceptance of such changes by the parties. Upon acceptance by Seller, an order can only be cancelled effective with the date of Seller’s written consent, which can be withheld or delayed in Seller’s sole discretion, and upon terms that indemnify and fully compensate Seller against losses resulting from such cancellation. Upon effective cancellation, Seller shall have the option to continue the processing of materials or articles affected to the point at which the processing can be halted with the least inconvenience to Seller. If any prior inventory in Seller’s possession shall become obsolete due to such changes or cancellations by Buyer, Buyer agrees to be responsible for paying Seller for Seller’s cost of the obsolete inventory.

Engineering (NRE) Charge
Engineering (NRE) charges may be quoted to cover the cost of process design required for Seller to perform Buyer’s manufacturing requirements, which may include fabricating special tooling fixtures, machine programming and SPC systems as examples. Generally, the engineering charge is made on the original order only. When revisions are made, an additional engineering charge may be due from Buyer as necessary in Seller’s sole discretion.

Customer Approvals
If Buyer pre-production approvals or pre-production engineering is required, deliveries will be based on date of receipt of the approval. If approvals are not received by Seller in a timely fashion, additional set-up charges may be due from Buyer and/or delivery dates may be delayed.

Buyer-Supplied Materials
If Seller agrees to use materials supplied by Buyer, then Buyer shall be solely responsible for supplying and delivering such material in a timely manner at no cost or expense to Seller, in sufficient quantity and quality, including any loss, waste, or scrap that may occur for any reason, as Seller deems necessary to complete the order. Buyer hereby acknowledges that Seller shall not be liable for, and Buyer shall pay any previously negotiated delivery premiums, despite any failure or delay in delivering any goods to be provided hereunder if such failure or delay is caused by Buyer’s failure to supply and deliver such materials in a timely manner or in sufficient quantity and quality as Seller deems necessary.

Claims, Complaints, and Compliance
Claims by Buyer for non-conforming Product, shipment, delivery or for any other cause associated with Seller’s performance, shall be deemed waived unless submitted in writing to Seller within 30 days of receipt of shipment. If Buyer makes a complaint about Products purchased, Buyer shall give Seller an opportunity to take one or more samples of the Product, if requested by Seller. Seller will provide a corrective action, if requested by Buyer, along with replacing the Product upon investigation and it is deemed to be Seller’s responsibility. Without Seller’s written consent, Buyer shall not return Products to the Seller. The costs of return dispatches shall be borne by Buyer unless otherwise agreed in writing. Buyer must submit any complaint concerning an invoice to Seller in writing, within 14 (fourteen) days of the receipt of the invoice, and any failure to do so means that Buyer has waived any rights to dispute the invoice or the amounts stated due thereon. Buyer will be allowed reasonable opportunities to visit Seller’s site given 3 days’ notice in writing for review of Buyer’s process and quality procedures/issues so long as such visit does not unduly interfere with the operations of Seller.

Price
Unless explicitly stated otherwise in the Contract, all prices agreed are denominated in U.S. dollars. Prices are fixed in accordance with Seller’s quote in effect on the date of the order from Buyer, to the extent that the Product is included in the quote, or as otherwise stated in the Contract. If no purchase order is issued from Buyer, Seller may use email documents as a replacement for an official purchase order. Prices agreed upon are based on the market conditions at the time Seller accepts Buyer’s order.

Payment
Buyer shall pay all invoices in accordance with the payment conditions shown in the invoice. In the absence of such conditions, payment will be due within 30 days of the invoice date. Buyer shall pay all amounts due under the Contract in full and the Buyer shall not assert any credit, set-off or counterclaim on any grounds whatsoever and such amounts shall be paid in full through a transfer to Seller’s bank account. Seller shall be entitled to suspend performance of all its obligations to Buyer, including those arising from other agreements, until Buyer has paid any and all overdue amounts.

In the event of failure by Buyer to pay any amount due to Seller by the date such amount is due, Seller has an option to add the lesser of (i) 1.5% interest and (ii) the highest amount permitted under applicable law every 30 days until payment is received in full from the Buyer. Compliance with Buyer’s obligations can be claimed on demand if Buyer is liquidated, declared bankrupt, becomes insolvent, has admitted an inability to buy its debts or is granted a moratorium on payments.

Seller may at its discretion at any time: require partial or full advance payment of the amounts payable to Seller from Buyer.

Limitation of Liability

IN NO EVENT SHALL SELLER, ITS AFFILIATES, OFFICERS, MEMBERS, MANAGERS, DIRECTORS, OWNERS, AGENTS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS (each a “Seller Party”) BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TOTAL AMOUNTS PAID TO SELLER FOR THE PRODUCT SOLD HEREUNDER. The liability limitation of in this paragraph does not apply to the extent prohibited by law or any liability resulting from Seller’s gross negligence, willful misconduct or death or bodily injury to third parties resulting from Seller’s negligent acts or omissions.

Indemnity
Buyer agrees to indemnify, defend and hold harmless Seller, each Seller Party, its customers and users of the Product, from and against any and all losses, expenses (including without limitation, reasonable attorneys’ and other professional fees), costs, damages, demands, liabilities, suits and claims in connection with or arising out of any actual or alleged personal injury (including death) or damage or destruction to property (including loss of use) by whomsoever suffered, sustained or alleged to have been sustained by reason of any act, error or omission, whether negligent or not, of Buyer or its agents, employees, or affiliates, provided that such injury, death, damage or destruction is not occasioned by the sole negligence of Seller or its agents and employees.

Warranties
Seller warrants that all products manufactured by Seller shall comply with applicable Buyer specifications in all material respects. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE PRODUCTS ARE OTHERWISE SOLD “AS IS” AND WITHOUT WARRANTIES FROM SELLER OF ANY KIND, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Refer to Claims, Complaints, and Compliance section above.

Force Majeure
Seller shall not be liable for any default or delay in the performance of its obligations under the Contract to the extent such performance is prevented, hindered or delayed as a consequence of any force majeure; where ‘force majeure’ means a fact or circumstance beyond the Seller’s direct control, including (without limitation) any pandemic, epidemic, flood, fire, explosion, lightning, terrorism, transport restrictions, contamination, risk of contamination, disruption of business operations, defects in or damage to means of production, strikes or similar actions, defaults by third parties, government measures and lack of raw materials or stagnation in supplies of raw materials or semi-manufactures. In the event that a force majeure continues for a period of more than 8 consecutive weeks, either party may terminate the Contract by providing written notice to the other party, such notice to take effect immediately on receipt. If Seller has partially complied with its obligation when the Contract is terminated under this paragraph, Buyer shall pay a proportional share of the agreed price on the basis of the work already performed.

Confidentiality
Neither party shall disclose the other’s confidential information to any third party without the prior written consent of that other party and shall not use such confidential information other than for the purposes of the Contract or the party’s obligations under the Contract.

Governing Law/Jurisdiction
The transaction between Buyer and Seller shall be governed by the laws of the State of New York and Buyer and Seller mutually agree that the United Nations Conventions on Contracts for the International Sale of Goods does not apply to the transaction between Buyer and Seller. In the event of any dispute between the parties arising out of the transaction, the parties agree and consent to the exclusive jurisdiction and venue in the state or federal courts of Niagara County, New York.

Assignment

Buyer may not assign any of its rights or delegate any of its obligations under the Contract by operation of law or otherwise without Seller’s prior written consent, which can be withheld or delayed in Seller’s sole discretion. Any purported assignment or delegation in violation of this paragraph is null and void and of no force or effect. No assignment or delegation relieves Buyer of any of its obligations under the Contract.