Terms and Conditions for Service Orders - Advanced Material Coatings

RULING TERMS AND CONDITIONS

The following Terms and Conditions apply to all service orders placed with AMC, a division of SV America Holdings, LLC, for metal finishing, or other related services. Customer hereby assents and is bound to AMC Terms and Conditions by submitting Purchase Orders or other purchase documents, notwithstanding and irrespective of any terms and conditions in Customer’s purchase order or other purchase documents (whenever issued) which may be different than or inconsistent with those stated herein. AMC, a division of SV America Holdings, LLC is referred to as “AMC” and the entity or person who is ordering services is referred to as the “Customer”.

QUOTATION & SALES TERMS

Quotations are based on customer information, written and/or verbal, and AMC’s interpretation of customer requirements at time quote is created. AMC reserves the right to refuse to honor the quotation if customer information or AMC’s understanding of requirements change after receipt of order from customer.

AMC quotations are open for acceptance thirty (30) days from issuance. After thirty (30) days, prices, lead times, terms and conditions are subject to change without notice. All quotations must be in writing. Verbal quotes are not acceptable and will not be honored. Stated lead times are estimates based on manufacturing load at time of quotation and are subject to change.

Unless other arrangements were quoted and contracted in writing, an AMC quotation for services is based on FOB AMC Shipping Dock utilizing customer’s original packaging. Customer shall pay all shipping costs directly or as a separate line on AMC’s invoice.

Since AMC will use Customer’s original packaging for storage and return shipment, any damage resulting from the use of such containers shall be at the customer’s risk. Should the customer desire other packaging for storage and shipment, AMC will charge for the material and handling and we will provide such products and services upon receipt of a written order. AMC’s prices do not include any applicable sales, use, excise or similiar taxes. If AMC is obligated to pay or collect any such U.S. federal, state, or local tax on the sale or shipment of the goods to Customer, Customer agrees to pay such tax as a separate line on AMC’s invoice. If Customer is exempt from any such tax but fails to timely provide AMC with written notice containing all necessary exemption information, and AMC pays or collects such tax, Customer remains obligated to pay such tax as a separate line on AMC’s invoice.

QMS REQUIREMENTS

AMC requires customers to notify AMC on RFQ’s and PO’s of QMS job requirements, such as NADCAP, AS9100, special plating specifications, or other information necessary for AMC to run the job properly. In the event such information is not provided, AMC may make the determination that they are not required and will not be liable for the product or processes performed.

SHIPPING TERMS

Sales terms are FOB AMC Shipping Dock. AMC will select the carrier unless Customer designates an acceptable specific carrier on its purchase order. If Customer designates a specific carrier on its purchase order but AMC’s standard packaging will not specify the requirements of such carrier, AMC shall have the authority to select a qualified alternate carrier without obtaining Customer’s prior approval. Shipping carriers that do not require receipt signature, of the products delivered, is the responsibility and liability of the customer. AMC reserves the right to arrange shipment in lots. Upon shipment of each lot, AMC shall have the right to immediately invoice Customer for the goods shipped and other proportions costs of the order. Stated shipment dates are estimates based on manufacturing load at time of Quotation and are subject to change when a Purchase Order is accepted by Customer, and again when Customer receives all information necessary to permit Customer to proceed with work immediately and without interruption. AMC will use reasonable commercial efforts to accommodate Customer’s requested shipment dates. AMC may arrange shipment of the goods in advance of Customer’s requested shipment date, unless a “not before” date is expressly stipulated by Customer and acknowledged by AMC if the goods are held by AMC beyond Customer’s scheduled shipment date for the convenience of Customer or due to any event of Force Majeure, AMC reserves the right to immediately invoice Customer for the goods, place the goods in storage on Customer’s behalf (at which time AMC’s delivery obligations will be deemed fulfilled and title and all risk of loss or damage will pass to Customer), and invoice Customer for all additional expenses incurred by Seller as a result thereof. IN NO EVENT SHALL AMC BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, ECONOMIC, PUNITIVE, OR EXEMPLARY DAMAGES RESULTING FROM DELAYED SHIPMENTS

PAYMENT TERMS

All orders are shipped C.O.D., certified check or prepaid unless other arrangements have been made. An open account, regardless of payment terms, must be established with SV America Holdings, LLC. and requires ALL proper application forms, credit references and final approval to be fully processed. All custom orders require a 50% deposit before service is performed. SV America Holdings, LLC. reserves the right to make all final decisions regarding Customer account status. Contact your sales representative for more information on how to establish such an account. Payment terms are NET30 unless otherwise stated. Invoices unpaid on due date shall be considered delinquent and thereafter subject to a FINANCE CHARGE computed by a single monthly rate of two percent (2%) computed on the delinquent balance until the account is paid in full.

Failure to make payment in full when due shall be a material breach permitting AMC to pursue its rights and remedies at law or in equity, including, but not limited to, suspension of production, shipment and/or delivery under this or any other contract between Customer and AMC. Customer shall pay all attorneys’ fees and court costs incurred by AMC relating to or arising out of any default under the Agreement, including, but not limited to, expenses associated with any suspension.

SHIPPING TERMS

PAYMENT TERMS

MATERIAL LIENS

All customers’ materials in our possession shall be subject to a general lien for all monies owed to us by the Customer, whether or not due or payable, or whether or not such monies are owed to us for work, labor, services rendered, or materials used in connection with such material.

IN-TRANSIT LIABILITIES

AMC assumes no liability for any loss or damage to material while in transit to or from our facility, whether in vehicle owned by the Customer, AMC or any third party acting in AMC’s or the Customer’s behalf. Customer has the responsibility to inspect shipments before or during unloading to identify any such loss or damage and place appropriate notation on the report furnished by the local agent of the carrier in order to support a claim. Any discrepancies in AMC’s order processing or shipment, such as quantity of parts invoiced versus actual parts delivered, must be reported within 10 days of receipt by Customer in order to make a legitimate claim of error (Also see Special Condition #6). Any claims for damage by third-party carriers will need to be made by the Customer directly with freight forwarder.

RIGHT TO CHANGE

AMC reserves the right to make changes to internal processes, equipment, material, chemicals, and any other changes to the operation without incurring liability or obligation to notify Customer, if AMC’s opinion is such change does not affect agreement of services provided to Customer.

NON-INSURER

AMC shall not, under any circumstances, be considered as an insurer of Customer’s material or merchandise and shall not be liable, regardless of cause, for loss by fire, explosion, theft, pilferage, vandalism, casualty, or acts of God while such material or merchandise is in AMC’s possession.

WARRANTY

AMC warrants that processing and finishing shall meet Customer’s specifications supplied in writing with the order. When specification revision level is not called out by Customer, Customer will accept specification revision level on file at AMC. Such processing and finishing shall be free from defect in material or workmanship. If the Customer specifies methods and procedures to be followed, AMC will assume no responsibility for the correctness of such methods and procedures or the result when they are followed. No Terms or Conditions of any Purchase Order or similar document submitted by Customer will become part of any agreement with AMC, unless accepted in writing. Any warranties of merchantability or fitness of purpose, and all other warranties are hereby disclaimed and excluded by AMC.

LIMITATION OF LIABILITY

AMC’s liability for any cause is limited to the cost of the service or processing charge. In no event shall AMC be liable for Customers’ or any other persons’ consequential or incidental damages resulting in AMC’s performance under order. All quotations, orders, agreements, or modifications thereof, are contingent upon and subject to any and all occurrences beyond AMC’s control, including but not limited to strikes or boycotts (whether occurring at AMC facility, Customer’s facility, supplier facilities, or facilities of transportation services), accidents, thefts, fires, war, shortage or materials, equipment, casualty, or acts of God. AMC shall not be liable for failure to perform an agreement for such causes. AMC will also not be liable for Special Conditions as noted below due to variability in Material or Processing.

SPECIAL CONDITION #1 – MATERIAL VARIABILITY

AMC and Customer fully acknowledge that variables in Customer supplied materials could create undesirable results in metal finishing operations. Customer understands and accepts the following variables that could occur and fully indemnifies AMC for losses that could occur due these variables: (1) change in material composition, finish, or fabrication technique; (2) surface conditions; (3) 2000 series aluminum which is known to give variable results in Hard-coating; (4) high copper content aluminum alloys; (5) below standard cleanliness; (6) heat treatments or other treatments that may not be uniform within the material.

SPECIAL CONDITION #2 – DIMENSIONAL COATING REQUIREMENTS

If AMC is required to produce a coating to achieve a finished dimension, (”dimensional coating”), this requirement must be acknowledged in the RFQ and approved in writing by the Operations Manager before any quotation or Purchase Order can be accepted. AMC will not be liable for any warranty claims due to incorrect dimensional coatings if such requirements were not noted and approved prior to processing.

SPECIAL CONDITION #3 – SPECIAL OR EXPERIMENTAL PROCESSING

For special or experimental processing and finishing, our charges are not contingent upon the success of that work or the benefit derived by the Customer.

SPECIAL CONDITION #4 – COLOR VARIATIONS

Color variations may be present from order to order. AMC will not be held responsible for color variations. If color match is required, the customer must supply a usable color match with each color. Color matches will not be kept on file. The color match sample must be made from the same alloy and temper of material and must have the same mechanical finish as the parts requiring the color. All costs incurred with the setup of a custom color (any color other than standard colors) will be paid by Customer, including but not limited to colored dye, tank setup and DI water use.

SPECIAL CONDITION #5 – RACK MARKS, MASKING, BLEED OUT

Rack or fixture marks will be permissible and unless specifically directed otherwise are left up to AMC’s discretion as to the number, size and location. Customers will be notified regarding specific processing issues, such as bleed-out from threaded blind holes. AMC will make recommendations regarding masking but will not be held liable for a non-conforming product.

SPECIAL CONDITION #6 – UNDERAGE & OVERAGE

AMC shall report to customer if product received is under or over the Customer’s Purchase Order quantities specified. If AMC ships product under the Customer’s Purchase Order amount specified due loss of product, for whatever means, AMC shall be liable up to the maximum compensation of one hundred dollars per Purchase Order occurrence.

CLAIMS PROCESS

In order to assert a claim for any material found to be improperly processed by AMC, the Customer will furnish the following without charge;

Notice of defect with a detailed explanation of any alleged deficiencies, must be given, in writing, within ten (10) days from the date of delivery, along with samples of non-conforming product.
AMC is given the opportunity to inspect samples for non-conformity prior to return goods authorization (RGA). If approved for RGA, follow Returns Goods Process. RETURN GOODS AUTHORIZATION (RGA):

Contact your representative in order to obtain an RGA number.
Provide your representative details of the return, reasons, and invoice number
All merchandise must be properly repackaged in order to insure safe shipment and delivery of merchandise. The materials must be return in the same condition when it was originally delivered.
RGA number must be visibility present on the outside of the package.
AMC will be given 7-days to analyze and determine feasibility of the claim, investigate cause of non-conformity and determine if alleged deficiencies actually exist and were not caused by Special Conditions, accident, misuse, neglect, alteration, improper installation or unauthorized repair.
IF THE PRODUCTS FURNISHED BY AMC FAILS TO CONFORM TO AMC SPECIFICATIONS AND ANY PRIOR WRITTEN CUSTOMER AGREEMENT FOR CUSTOM SPECIFICATIONS, AMC’S SOLE AND EXCLUSIVE LIABILITY TO CUSTOMER SHALL BE (AT AMC’S OPTION) TO REPROCESS THE PRODUCT OR CREDIT CUSTOMER’S ACCOUNT FOR ONLY THE SERVICES PERFORMED. AMC SHALL REIMBURSE CUSTOMER FOR THE RETURN TRANSPORTATION CHARGES FOR SUCH PRODUCTS.

OWNERSHIP OF TOOLING

Any special racks, fixtures, tooling, or startup equipment required to process Customer’s parts specified, designed and/or built by AMC shall remain AMC property whether or not the Customer is charged with time and/or material.

INDEMNIFICATION

To the fullest extent permissible by law, Customer shall indemnify, hold harmless and defend AMC and SV America Holdings, LLC and its affiliates, divisions and their respective employees, officers, directors, shareholders, insurers, agents and representatives (collectively, the “Indemnified Parties”) from all claims, liabilities, damages, suits, proceedings, costs and expenses (including reasonable attorney fees) (collectively, the “Losses”), for any damage, injury, death, loss or destruction of any kind relating to or arising out of the use of the products or services, or arising from Customer’s resale, repair, replacement, or misuse of any Goods delivered by AMC. Including, without limitation, loss or damage to any property, or injury to or death of any person (including, without limitation, Customer or its employees), whether arising as a worker’s compensation claim or under theories of negligence, tort, strict liability, intentional misconduct, or fault of any kind, except to the extent caused by gross negligence or willful misconduct of the Indemnified Parties.

Customer shall indemnify, defend, and hold AMC and SV America Holdings, LLC harmless from and against any claim, charge, suit or proceeding which may be brought against Seller or its agents or vendors for alleged intellectual property infringement or unfair competition resulting from similarity in design, trademark, or appearance of goods by reason of Customer’s manufacture or sale of any goods based upon AMC specifications, drawings or designs in the fulfillment of an order for Customer. Customer indemnify, defend, and hold Seller harmless from and against any and all liability, damages, losses, royalties, lost profits and expenses (including court costs and attorney’s fees) resulting from the bringing or defense of such suit or proceedings including any settlement or decree of judgement entered therein. AMC in its sole discretion may be represented by and actively participate through its own counsel in any such suit or proceeding.

Customer at its own expense shall defend any such claim, charge, suit or proceeding which is brought against AMC or SV America Holdings, LLC. Customer shall pay any judgment finally awarded in any such claim, charge, suit or proceeding, regardless of whether AMC or Customer directs the defense thereof, and Customer shall pay any amounts payable in settlement or compromise of any such claim, suit or action. This provision shall survive expiration or termination of the agreement.

CANCELLATION TERMS

In the event that Customer terminates all or any portion of its order, AMC shall have the right to charge Customer for: (a) all costs already incurred by AMC for completed and incomplete processed parts; (b) the price or cancellation charge assessed by AMC’s vendors of any materials, parts, or services required to fill the order and; (c) a reasonable allowance for overhead and profit.

DISPUTES & APPLICABLE LAW

All disputes relating hereto shall be governed by the laws of the State of North Carolina applicable to contracts made and wholly performed within North Carolina by persons domiciled in North Carolina including but not limited to the North Carolina Uniform Commercial Code. If any term or condition is deemed unlawful or unenforceable by a court of competent jurisdiction for any reason, there shall be deemed to be made such minimal changes as are necessary to render such portion lawful and enforceable and the remainder of the terms hereof shall remain in full force.

MODIFICATION, RESCISSION & WAIVER

No provision of the Terms and Conditions between Customer and AMC shall be deemed to have been waived, modified, or rescinded except in a writing signed by an authorized manager of AMC or SV America Holdings, LLC. The failure by AMC to enforce at any time of the provisions of these Terms and

Conditions, or to exercise any rights provided herein, will not be construed as a waiver of such provisions or options, nor in any way be construed to affect the validity of this Agreement, or the right of AMC thereafter to enforce each and every such provision. In the event any provision hereof shall be deemed to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the provisions shall continue in full force and effect.

ATTORNEYS’ FEES

If any legal actions are necessary to enforce the terms contained herein, the prevailing party, shall be entitled to recover its expenses of litigation, including reasonable attorneys’ fees, expert witness fees, and court costs, in addition to any other relief to which may be granted.

ENTIRE AGREEMENT

This Agreement contains the entire agreement and understanding between the parties as to the subject matter hereof, and merges and supersedes all prior agreements, commitments, representations, writings and discussions between them, and may be modified only in writing signed by both the parties. This Agreement shall be binding upon Customer and AMC and their respective successors and assigns. However, this Agreement is not assignable by Customer without the prior written consent of AMC and any purported assignment without such consent will be void.