Terms & Conditions of Purchase


1. MODIFICATIONS Changes, modifications, waivers, additions or amendments to the terms and conditions of this order shall be binding on EMS only if such changes, modifications, waivers, additions, or amendments are in writing and signed by a duly authorized representative of EMS.

2. APPLICABLE LAW The validity, interpretation, and performance of these terms and conditions and any purchase made hereunder shall be governed by the laws of the state from which this order is issued, in force at the date of this order for contracts made and to be performed in such state. Where not modified by the terms herein, the provisions of such state’s enactment of Article 2 of the Uniform Commercial Code shall apply to this transaction.

3. COMPLIANCE WITH LAW Seller agrees that at all times it will comply with all applicable federal, state, municipal and local laws, orders and regulations, including but not limited to those affecting or limiting prices, production, purchase, sale, and use of material. If requested by EMS, Seller agrees to timely certify compliance with such laws in such forms as EMS may request.

4. RELEASE OF INFORMATION Neither party hereto shall, without the prior written consent of the other party (which shall not be unreasonably withheld), publicly announce or otherwise disclose, except to the U.S. Government, when the Purchase Order references a U.S. Government contract or subcontract number, the existence or the terms of this agreement, or release any publicity regarding this Agreement. This provision shall survive the expiration, termination, or cancellation of this Agreement. Any knowledge or information which Seller may disclose to EMS shall not be deemed to be confidential or proprietary information and shall be acquired by EMS free from any restrictions as to use or disclosure thereof.

5. INDEMNITY In the event Seller, its officers, employees and agents or any of them enter premises owned, leased, occupied by or under the control of EMS in the performance of or in connection with this order, Seller agrees to indemnify and hold EMS, its officers, agents and employees harmless from any loss, cost, damage, or bodily injury (including death) of whatsoever kind or nature arising out of, or incidental to the performance, delivery or installation of this order occasioned in whole or in part by any action or omission of Seller, its employees, officers and agents or any of them. Seller will maintain general comprehensive liability, property damage and automobile liability insurance, including contractual endorsement and products hazards coverage, in reasonable amounts covering the obligations set forth in this order and, upon request, it will provide EMS with a Certificate of insurance indicating the amount of such insurance. Seller agrees to defend and indemnify EMS and its customers from and against all claims, Actions, liabilities, losses and costs and expenses arising out of the death or injury to any person, property damage or loss, or economic injury arising out of this order.

6. WAIVER Any failure of EMS to enforce at any time, or for any period of time, any of the provisions of this purchase order shall not constitute a waiver of such provisions not of EMS’s right to enforce each and every provision.

7. ACCEPTANCE AND WARRANTY Final acceptance of material by EMS will not be until after arrival at the EMS facility from which this order originates, unless otherwise specified herein. Seller warrants that all articles, material and work supplied by Seller under this order conform to the requirements, specifications, drawings, samples or other descriptions furnished or adopted by EMS and that they are of good material and workmanship and free from all defects in manufacture or design, and are of merchantable quality and fit for their intended purpose. Such warranties by Seller shall run to the benefits of EMS, its employees and purchaser’s from EMS. EMS’s approval of designs furnished by Seller shall not relieve Seller of its obligation under this warranty. Seller’s warranty shall be effective for a period of time as set forth on the face of this purchase order. If no such schedule is set forth on the face of this purchase order, the warranty shall be effective for a period of one year from the date of acceptance of goods by EMS, or for such longer period specified by Seller. All articles and material returned to Seller for breach of warranty hereunder shall be at Seller’s expense, including expenses and penalties incurred by EMS in recalling such articles and materials which have been delivered to EMS’s customers and expense of redelivery. Seller agrees that shipment of materials against this P.O. constitutes certification that all articles or goods included in this shipment conform in all respect to the applicable requirements, specifications, and drawings. Seller will make process control data, inspection, and test reports covering the articles or goods and their parts available for review and subject to examination by EMS or its authorized representative to verify conformance to such applicable specifications and drawings. However, a certificate of conformance must accompany individual shipments when so specified on applicable drawings, or on the front of this purchase order. Any articles or materials not accepted by EMS may be returned to Seller at Seller’s expense for full credit of the purchase price. Inspection may be performed at EMS’s option on a statistical sampling basis. The entire lot may be rejected based on defeats revealed by such sampling. At EMS’s option, the rejected lot will be either returned to the Seller for replacement or credit or 100% screened by EMS with cost of screening paid by Seller. The initial inspection performed at EMS on receipt of material is a conditional acceptance, and shall not waiver the right of EMS to return material to Seller which exhibits or develops defects due to latent causes during or after installation or testing of the end product. Seller shall preserve all special drawings, dies, patterns, tooling or other items supplied or paid for by EMS in good condition; and they are the property of EMS unless otherwise specified, and the same such items shall be returned in good condition when the work on the order has been completed or terminated, or at any other time as requested by EMS. No special drawing, die, pattern, tool or other item supplied by EMS I or made by Seller for the use of or delivery to EMS, or for use by Seller in supplying EMS, shall be used by Seller for any purpose other than supplying EMS, without Sellers first obtaining the written consent of EMS thereto, provided, however, that if the U.S. Government has rights in such items under a prime contract with EMS, noninterfering use of the items for direct sales to the Government is authorized if written notice is provided to EMS prior to such use. If material, equipment, special drawings, dies, patterns, or other items are furnished by EMS for performance of this purchase order, all risk of loss thereof or damage thereto shall be upon Seller from the time of shipment to Seller until redelivery to and receipt by EMS.

8. PATENTS AND COPYRIGHTS Seller agrees to indemnify and to save EMS, its officers, agents, employees, and vendees (mediate and immediate) harmless from any and all loss, expense, damage, liability, claims or demands either at law or in equity for actual or alleged infringement of any patent invention, design, trademark, or copyright arising from the purchase, use or sale of materials or articles required by this purchase order, except where such infringement or alleged infringement arises by reason of designs for such materials or articles originally furnished to Seller by EMS.

9. CHANGES EMS may change from time to time any of the drawings, specifications or instructions for work covered by this purchase order and Seller shall comply with such change notices. If such changes result in a decrease or increase in Seller’s cost or in the time for performance, and adjustment in the price and time for performance may be made by the parties in writing, provided, however, that Seller notifies EMS of the request for such adjustments within thirty (30) days after receipt by it of the change notice.

10. ASSIGNMENTS Performance obligations shall not be assigned or transferred by Seller without prior written approval by EMS, and any attempted assignment or transfer without such consent shall be void. Seller shall not subcontract any substantial portion of the work to be performed by it under this order without the prior written consent of EMS.

11. TERMINATION EMS may terminate the work to be performed hereunder in whole or in part at any time without cause by written notice to seller. Such notice shall state the extent and effective date of such termination and, upon the receipt of such notice, Seller will comply with the directions pertaining to work stoppage hereunder and the placement of further orders or subcontracts hereunder. The parties shall thereupon employ their best efforts to agree by negotiation, within three (3) months upon the amount of reimbursement, if any, to be paid to Seller for such termination. Termination under this provision shall not be deemed a breach of contract. The provisions of this paragraph shall not limit or affect the right of EMS to terminate this order for cause and shall not apply to a termination with cause. Seller shall mitigate its claim to the maximum extent, and in any event no claims shall exceed the lesser of fair market value or actual cost of raw materials and work in progress material which Seller shows cannot be diverted to other uses. No claim shall be asserted or honored for loss of expected profits, or for any consequential or incidental damages, due to cancellation.

12. PRICE ADJUSTMENT EMS will not accept shipment at any increase in price above that indicated on this order. Any general price decrease announced by Seller in classification of equipment and/or materials similar to the items described on this order shall automatically reduce the price thereof by a comparable percentage.

13. NOTICE OF LABOR DISPUTES Whenever any actual or potential labor dispute delays or threatens to delay the timely performance of this order, Seller shall immediately give notice thereof to EMS and, if the order relates to a military contract, Seller will also give notice to the nearest military representative.

14. TERMS The following terms with respect to payment are applicable to this order: A. NET INVOICES Net invoices dated within a seven-day week ending on a Saturday will be paid on the first Friday after 45 days of receipt of the invoice. B. DISCOUNTED INVOICES Discounted invoices dated within a seven day week ending on a Saturday will Be paid the second following Friday. Invoices that specify a discount for tenth prox payment will be paid on the second Friday of the month following the date of the invoices. The acceptance of minimal discount offers will be at the discretion of EMS. C. All schedules of payments above stated are based upon receipt by EMS or Shipment f.o.b. source, whichever is applicable as indicated on the face hereof, of the goods or services prior to scheduled payment date. If EMS receives the invoice prior to such shipment or receipt of goods or services, the foregoing terms on this order shall be measured from date of such receipt of shipment of goods rather than date of receipt of invoice. D. Invoices must be imprinted, where applicable, with the nine digit D-U-N-S Number where available, corresponding to the address where payment should be mailed and payment shall be sent to such address.

15. EXTRA CHARGES No charges of any kind, including charges for boxing or cartage, will be allowed unless specifically agreed to by EMS in writing. Pricing by weight, where applicable, covers net weight of material, unless otherwise agreed.

16. TIME OF DELIVERY The delivery dates indicated by EMS for the articles, material or work to be supplied under this purchase order are of the essence. Failure to meet agreed upon delivery shall be considered a breach of the contract; furthermore, Seller agrees to pay to EMS any penalty and damages imposed upon or incurred by EMS for failure of Seller to deliver articles, materials, or work on such delivery dates. Unless otherwise agreed in writing, Seller shall not make commitments for material or production in excess of the amount or in advance of the time necessary to meet EMS’s delivery schedule. It is the Seller’s responsibility to comply with this schedule, but not to anticipate EMS’s requirements. Goods shipped to EMS in advance of schedule may be returned to Seller at Seller’s expense. EMS may reschedule the delivery of any unshipped product for later delivery within ninety (90) days of the originally scheduled delivery date.

17. SETOFF EMS shall be entitled at all times to setoff any amount owing, for any reason, at any time, from Seller to EMS of any of its affiliated companies against any amount payable at any time by EMS in connection with this order.

18. SALES AND USE TAX EXEMPTION It is hereby certified that the above described property is exempt from the sales and use tax, unless otherwise noted for the reason that such property is purchased for resale or will become an ingredient or component part of, or be incorporated into, or used or consumed in, a manufactured product produced for ultimate sale at retail. If the property described on this purchase order is purchased tax exempt and subsequent use makes this property taxable, EMS will access and pay tax to the appropriate state.

19. RESERVATION OF RIGHTS EMS expressly reserves all rights and remedies which are available to it at law or equity, including but not limited to rights and remedies set forth in the Uniform Commercial Code.

20. ATTACHMENTS Any attachments referenced on the front side of this order shall be deemed for all purposes to be an integral part of this order. In the event of irreconcilable conflict between such referenced attachments and the terms stated herein, the terms of such contracts shall control.

21. OVERSHIPMENTS Seller is instructed to ship only the quantity(ies) specified in this order. However, any deviation caused by conditions of loading, shipping, packing, or allowances in manufacturing processes may be accepted by EMS according to the overshipment allowance indicated on the face of this order. If no allowance is shown, it shall be 0% (zero percent). EMS reserves the right to return any overshipment in excess of the allowance at the Seller’s expense.

22. PACKING AND SHIPPING INSTRUCTIONS Seller agrees to insure that shipments are properly packed and described in accordance with EMS specifications and/or applicable carrier regulations. Shipments will be made at the lowest freight charges. EMS may assist Seller by providing freight classifications or classifying material. Seller will not insure or declare value on shipments, expect on parcel post, unless EMS specifies otherwise. On shipment where value is declared, Seller will ship prepaid insured for $50 to facilitate tracing. When shipping via small parcel, Seller will ship freight collect if available, otherwise Seller will ship freight prepaid. Seller shall consolidate air and surface shipments daily on one bill of lading per mode to avoid premium freight costs, unless instructed otherwise by EMS. In case of any shipment that does not correspond to normal past practice between EMS and Seller, or to standard practice in the industry, (e.g., requires special handling equipment or air ride suspension, or air shipment over 500 pounds, or over 120 inches long or wide, or over 56 cubic feet, etc.) Seller agrees to notify EMS’s appropriate traffic department 72 hours prior to shipment for special shipping instructions. All truck shipments must be classified by Seller using the current “National Motor Freight Classification Tariff”. Each box, crate or carton will show EMS’s full street address (not just post office box numbers) and purchase order and item numbers regardless of how shipped. On small parcel shipments, a packing list shall accompany each container and shall describe the contents of that container. On other shipments, Seller will provide a packing list to accompany each shipment, referencing the appropriate purchase order and item number. The bill of lading also will reference the purchase order and item number. Seller is responsible for packing any shipment correctly based on the carrier/mode utilized. Charges for packing and crating shall be deemed part of the purchase price, and no additional charges will be made therefor unless specifically requested by EMS on the purchase order. Seller agrees to ship via the carrier specified by EMS. Failure to ship via EMS specified carrier will subject Seller to misroute debit. All premium freight cost incurred by EMS or Seller beyond that specified by EMS shall be borne by Seller. Seller is responsible for all shipments which are damaged in transit due to improper packaging, improper judgment or any other act or omission of the Seller, shipper, or carrier. On all F.O.B. origin shipments, except Parcel Post, Seller will ship freight collect. (If small parcel carrier collect is unavailable, Seller will ship prepaid). Definition of Terms (Whether F.O.B. origin or destination). (a) “Freight collect” Seller will ship freight collect – freight carrier will bill EMS. (b) “Freight prepaid charge back” – Seller will ship freight prepaid and bill EMS. (c) “Freight prepaid” – Seller will ship freight prepaid and bear all transportation costs.

23. RETURNS Defective material shall be returned freight collect to Seller. Replacement material shall be sent freight prepaid from Seller, who will absorb the burden of premium transportation when defect or replacement material places critical time or delivery schedule constraints on EMS.

24. INSPECTION – QUALITY SYSTEM A. The seller agrees to permit EMS and EMS’s customer or Government representatives if this purchase order references a U.S. Government contract or subcontract number, to verify the quality of supplies and services being provided under this purchase order at any production stage in the Seller’s facility. Verification may consist of a physical assessment/surveillance of the Seller’s facilities and quality programs and/or a source inspection. Deficiencies identified during such verification shall be positively corrected by the supplier in the most expeditious manner possible. The Seller shall provide all reasonable facilities and assistance for the safety and convenience of personnel engaged in such verification. Seller agrees to include into each subcontract seller might make hereunder appropriate provisions to the same effect. B. Unless modified by the Purchase Order through the use of EMS’s P.O. clauses, Seller is required to ensure that the manufacturing processes used meets the technical requirements of the applicable drawings, specifications, engineering changes, and added requirements of the purchase order. An inspection system inherent to verifying the technical requirements must be maintained and objective evidence of such will be produced on request. C. Distributors who supply goods to be applied to a government contract or subcontract shall maintain a quality program which meets the requirements of EMS Specification 729476 (Distributor Quality Requirements) in lieu of 24(a) and 24(b), above. Proof of compliance must be produced upon request or by assessment from EMS.

25. SELLER OWNERSHIP CHANGE Seller is required to submit immediately in writing to EMS notification on the following change conditions, whether subcontract is DOD classified or not: (a) Acquisition by or merger with any foreign interest; (b) Majority or controlling interest obtained by a foreign interest.

26. GOVERNMENT CONTRACT PROVISIONS If this Purchase Order references a U.S. Government contract or subcontract number, the dates of the following clauses of the Federal Acquisition Regulation (FAR) are the same as the dates of the corresponding clauses in the prime contract referenced on the front of this P.O. are incorporated by reference and will prevail in the event of any inconsistency with the foregoing terms and conditions. Cost Accounting Standards (CAS) requirements are those in effect on the date of the subcontract award or final agreement on price, whichever is earlier. It is understood that the term “contracting officer” or “Government” shall mean EMS and “contractor” shall mean Seller when applicable. Any reference to a “disputes” clause in any FAR clause incorporated in this purchase order is deleted. Any FAR clause which by its terms is required to be included in a subcontract is hereby incorporated in this purchase order when applicable. Seller shall be entitled to the full benefit of whatever authorization and consent clause is contained in the prime contract referenced on the front of this purchase order. Refer to form TI-288 18 for applicable FAR clauses.

Terms & Conditions of Sale


1. TAXES Prices do not include any taxes, now or hereafter enacted, applicable to the goods sold on this transaction. Taxes will be added by Seller to the sales price where Seller invoices the same to comply with law, and will be paid by Buyer unless Buyer provides Seller with a proper tax exemption certificate.

2. PRICES, RELEASES, AND SETOFF Prices apply only if the quantity ordered hereunder is released for shipment within twelve (12) months (or longer if mutually agreed to in writing) from the date of Seller’s receipt of Buyer’s order. Otherwise, Seller’s standard price in effect at time of release shall apply to quantity shipped and Buyer shall pay the difference in price, if any, and Seller has the right to terminate this contract. In such event, Buyer is liable for termination charges as set forth in Paragraph 15a. Buyer grants to Seller the right at any time during the course of this contract to revise prices hereunder by Seller’s giving to Buyer written notice, such revised prices to apply to all goods thereafter shipped. If buyer provides written objection within ten (10) days following notice of a price change established by Seller, Seller shall have the option of terminating this contract with no liability to Seller. Buyer waives any rights of setoff, except with respect to it s claims against Seller which arise from transactions with the division at the address shown on the face hereof.  All sales are in USD currency.

3. TITLE AND DELIVERY All shipments of goods shall be delivered F.O.B. Seller’s plant, and title and liability for loss or damage thereto shall pass to Buyer upon Seller’s delivery of the goods to a carrier for shipment to Buyer, and any loss or damage thereafter shall not relieve Buyer from any obligation hereunder. Buyer shall be liable for costs of insurance and transportation and for all import duties, taxes and any other expenses incurred or licenses or clearance required at port of entry and destination.Seller may deliver goods in installments. Shipping dates are approximate only. Seller shall not be liable for any loss or expense, whether by way of contract or tort, (consequential or otherwise) incurred by Buyer if Seller fails to meet the specified estimated delivery schedule because of unavoidable production or other delays. All provisions of the Paragraph 3 apply to both domestic and international shipments, except that title to goods shipped outside the U.S. shall pass at the point of destination; risk of loss or damage and all expense associated with goods shipped outside the U.S. shall be the responsibility of the Buyer. Notwithstanding any other provisions of the Paragraph 3 to the contrary, if Buyer is an international subsidiary of Seller, title shall pass at the point of destination and Seller shall be liable for loss or damage to such goods until receipt by Buyer at point of destination.

4. QUANTITIES Any variation in quantities shipped over or under the quantities ordered according to the following tolerances shall constitute compliance with Buyer’s order and the stated unit price will continue to apply. Order Quantity (Q) Tolerance Samples Lots Yield of Run 200 Lbs > Q > 399 Lbs +/-30% 400 Lbs > Q > 999 Lbs +/- 20% 1,000 Lbs > Q +/-10%


6. TERMS AND METHOD OF PAYMENT Where Seller has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice. The amount of credit or terms of payment may be changed, or credit withdrawn by Seller at any time. If the goods are delivered in installments, Buyer shall pay separately for each installment. Payment shall be made for the goods without regard to whether Buyer has made or may make any inspection of the goods. if shipments are delayed by Buyer, payments are due from the date when Seller is prepared to make shipments. Goods held for Buyer are at Buyer’s risk and expense.

7. CONTINGENCIES AND FORCE MAJUERE Seller shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control either of Seller or Seller’s suppliers, including, but not limited to, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical failure where Seller has exercised ordinary care in the prevention thereof. Seller may allocate production and deliveries among seller’s customers.

8. SUBSTITUTIONS AND MODIFICATIONS OF GOODS Seller may modify the specifications of goods designed by Seller, and substitute goods manufactured to such modified specifications for those specified herein, provided such goods substantially conform to this contract. Where Buyer orders goods subject to military specifications, Buyer agrees that seller may supply goods which conform with the most current version or revision of the applicable military specifications.

9. LEGAL COMPLIANCE Buyer, at all times, shall comply with all applicable federal, state and local laws and regulations. Export of the products covered by this quotation or acknowledgment may be subject to export license control by the U.S. government. It is Buyer’s responsibility to obtain any licenses which may be required under the applicable laws of the U.S. including the Export Administration Act and regulations promulgated thereunder.

10. CHANGES Any notice or instruction from the Buyer received subsequent to Seller’s acknowledgment, including supplementary information contained in a confirming purchase order, which has the effect of changing the specifications, scope of work, or other terms, will be effective only upon an appropriate adjustment in the price and/or delivery date, and acceptance of any change by Seller in writing.

11. LIMITED WARRANTY: THE FOLLOWING IS IN LIEU OF ALL WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OBLIGATION ON THE PART OF SELLER. Seller, except as otherwise hereinafter provided, warrants the goods against faulty workmanship or the use of defective materials, and that such goods will conform to Seller’s written specifications, drawings, and other descriptions for a period set forth in the schedule below. Seller warrants that at the time of delivery Seller has title to the goods free and clear of any and all liens and encumbrances. These warranties are the only warranties made by Seller and can be amended only by a written instrument signed by an officer of Seller. Seller’s warranties shall be for the following periods: Metal goods and clad material systems – six (6) months from the date of shipment. This includes, without limitation, strip and sheet. Precision materials, six (6) months form the date of shipment. Continued use or possession of goods after expiration of the applicable warranty period stated above shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of Buyer. Seller makes no warranty as to experimental or developmental goods or goods not manufactured by Seller, provided that as to goods not manufactured by Seller, Seller, to the extent permitted by Seller’s contact with its supplier shall assign to buyer any rights Seller may have under any warranty of the supplier thereof. Seller’s warranties are herein above set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of Seller’s rendering of technical advice or service in connection with Buyer’s order of the goods furnished hereunder.

12. PRODUCT APPLICATION INDEMNITY Buyer agrees to indemnify and hold harmless Seller for all claims, whether arising in tort or contract, against Buyer and/or Seller, including Attorney’s fees, expenses and costs, arising out of the application of Seller’s products to Buyer’s designs and/or products, or Seller’s assistance in the application of Seller’s products.

13. EXCLUSIVE REMEDIES If the goods furnished by Seller fail to conform to Seller’s exclusive limited warranty, Seller’s sole and exclusive liability shall be (at Seller’s option) to repair, replace or credit Buyer’s account for any such goods which are returned by Buyer during the applicable warranty period set forth above, provided that (i) Seller is promptly notified in writing upon discovery by Buyer that such goods failed to conform to this contract with a detailed explanation of any alleged deficiencies, (ii) such goods are returned to Seller, F.O.B. Seller’s plant, and (iii) Seller’s examination of such goods shall disclose to Seller’s satisfaction that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing. If such goods are non conforming, Seller shall reimburse Buyer for the transportation charges paid by Buyer for such goods. If Seller elects to repair or replace such goods, Seller shall have a reasonable time to make such repairs or replace such goods. THIS IS THE SELLER’S ONLY LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY CLAIM, WHETHER ARISING IN TORT OR CONTRACT, AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

14. ACCEPTANCE OF PRODUCT Acceptance shall be presumed conclusively to have occurred thirty (30) days following delivery of product to Buyer, unless Buyer has accepted the product prior to that date.

15. PATENTS Seller shall defend any suit or proceeding brought against Buyer insofar as such suit or proceeding is based on a claim that any goods manufactured and supplied by Seller to Buyer constitute direct infringement of any duly issued United States patent and Seller shall pay all damages and costs finally awarded therein against Buyer, provided that the Seller is promptly informed and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given authority, information and assistance (at Seller’s expense) necessary to defend or settle said suit or proceeding. Seller shall not be obligated to defend or be liable for costs and damages if the infringement arises out of compliance with Buyer’s specification (s), or from a combination with, an addition to, or a modification of the goods after delivery by Seller, or from use of the goods, or any part thereof, in the practice of a process. Seller’s obligations hereunder shall not apply to any infringement occurring after Buyer has received notice of such suit or proceeding alleging the infringement unless Seller has given written permission for such continuing infringement. If any goods manufactured and supplied by Seller to Buyer shall be held to infringe any United States patent and Buyer shall be enjoined from using the same, Seller will exert its reasonable efforts, at its option and at its expense, (i) to procure for Buyer the right to use such goods free of any liability for patent infringement or (ii) to replace such goods with a non-infringing substitute otherwise complying substantially with all requirements of this contract or (iii) refund the purchase price and the transportation costs of such goods. If the infringement by Buyer is alleged prior to completion of delivery of the goods under this contract, Seller may decline to make further shipments without being in breach of this contract, and provided Seller has not been enjoined from selling said goods to Buyer, Seller agrees to supply said goods to Buyer, at Buyer’s option, whereupon the patent indemnity obligation herein stated with respect to Seller shall reciprocally apply with respect to Buyer. If any suit or proceeding is brought against Seller based on a claim that the goods manufactured by Seller in compliance with Buyer’s specifications and supplied to Buyer directly infringe any duly issued United States patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The sale of the items ordered hereunder does not grant or convey or confer upon Buyer upon Buyer or Buyer’s customers, or upon anyone claiming under Buyer, a license express or implied under any patent rights of Seller covering or relating to any combination, machine or process in which said item might be or are used. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF SELLER FOR PATENT INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO, AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.  

16. TERMINATION AND CANCELLATION (a.) Buyer may terminate this contract in whole, or from time to time, in part, upon thirty (30) days advance written notice to Seller. In such event, Buyer shall be liable for termination charges which shall include: a price adjustment based on the quantity of goods actually delivered and all cost, direct and indirect, incurred and committed for this contract; together with a reasonable allowance for prorated expenses and anticipated profits. (b.) If, in Seller’s judgment, the Buyer’s financial condition does not justify the terms of payment specified, Seller may cancel this contract unless Buyer shall immediately pay for all goods which have been delivered and pay in advance for all goods prior to delivery.

17. NON-WAVER OF DEFAULT AND COLLECTION RIGHTS In the event of any default by Buyer, Seller may invoke any remedy provided by law or by the terms herein stated, and may decline to make further shipments. If Seller elects to continue to make shipments, Seller’s actions shall not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedies for any such default. In the event Seller resorts to a third party or to litigation in order to collect amounts due Seller, Buyer agrees to pay costs of collection for amount owed to Seller, including, but not limited to, attorney’s fees, court costs, and interest in the amount of 1% per month (12% per annum), from the date the amount is due.

18. APPLICABLE LAW AND FORUM The validity, performance and construction of this contract shall be governed by the laws of the state in which Seller resides, as shown on the face hereof and such state shall be the only jurisdiction in which any suit may be brought against Seller regarding any dispute arising of this transaction.

19. U.S. GOVERNMENT CONTRACTS If the goods to be furnished under this contract are to be used in the performance of a U.S. Government contract or subcontract, and a U.S. Government contract number shall appear on Buyer’s purchase order, those clauses of the applicable U.S. Government procurement regulations which are required by Federal Statute to be included in U.S. Government subcontracts are incorporated herein by reference.

20. ASSIGNMENT This contract is binding upon and inures to the benefit of the parties and the successors and assigns of the entire business and good will of Buyer, or of that part of the business used in the performance of this contract, but shall not be otherwise assignable, without the prior consent of Seller.

21. AFFIDAVITS AND CERTIFICATES No certificates of compliance, conformance, or chemical analysis shall be provided unless Buyer’s detailed requirements are stated on the face of the Buyer’s order. Seller reserves the right to charge an additional fee for any such certificate.

22. SIZES, TOLERANCES, INSPECTION AND SAMPLES Quotations are preferably made on the basis of Buyer’s prints. When quotations are made on the basis of samples or otherwise, the dimensions on which the quotation is based will be stated. USE OF, OR REFERENCE TO SAMPLES, SHALL NOT ENLARGE, AFFECT OR ALTER THE LIMITED AND EXCLUSIVE WARRANTY (PARAGRAPH 10) OR REMEDY (PARAGRAPH 12). Where Buyer requires samples from Seller to verify completion of fitting-up, Buyer will pay for such fitting-up within (30) days after receipt of the samples, unless Buyer within such period gives Seller a detailed written description of any allowable variance from specifications, in which case Buyer will promptly pay upon correction of such variances. The dimensions for quoting and manufacturing are the mean specifications and are subject to the normal tolerances for variations. Unless otherwise specified in Buyer’s prints or specifications, for precious metal clad products inlay will be interpreted to be the average reading of the samples cross-sectioned; for flat sections, three readings across the surface will be averaged; for radial faced surfaces, the center readings will be averaged. Standard tolerance in inlays over .001 shall be plus or minus 10% from the nominal. With regard to metallurgical materials and other related products, all manufactured goods will be inspected to a 1.5% AQL unless otherwise specified.

23. TOOLS AND DIES Unless otherwise provided herein, even though fitting-up charges may be specified, all tools and dies, including, without limitation, fixtures, gauges and assembly equipment manufactured for this contract, will be Seller’s property, but will be retained by Seller for Buyer’s non-exclusive use; provided, however, that Seller may dispose of such tools and dies if Buyer does not order from Seller goods for manufacture therefrom within any one (1) year period. If any tools and dies manufactured by Seller are to become Buyer’s property, it must be specifically so provided on the face hereof. Any such tools and dies, or any materials, tools, dies and other equipment furnished by Buyer to Seller, shall be at Buyer’s sole risk and expense, and Seller shall not be liable for loss, damage, maintenance, repair or renewal, regardless of cause. If Buyer desires to withdraw such tools and dies from Seller’s plant, and if Seller consents to permit Buyer to withdraw them, for any reason, Buyer will first compensate Seller for any cost incurred with respect to them, including, without limitation, design and development costs.

24. SEVERABILITY OF TERMS If any phrase, clause or provision shall be declared void, the validity of any other provisions shall not be affected thereby.

25. RELEASE OF INFORMATION Neither party hereto shall, without the prior written consent of the other party which will not be unreasonably withheld), publicly announce or otherwise disclose the existence of the terms of this agreement, or release any publicity regarding this amendment. This provision shall survive the expiration, termination or cancellation of this Agreement.


27. RETURN OF DEFECTIVE MATERIAL Once a customer has requested and received an EMS Rejected Material Request (RMR) number from EMS, the appropriate packaging requirements for returning the material is provided to the customer as part of the EMS RMR authorization notification. Reference to the EMS RMR authorization number must be clearly displayed and legible on the outside of the packaging. Items without the EMS RMR authorization number will not be accepted by EMS. Material that is damaged in transit as a result of the customer not following the appropriate packaging requirements (excluding the defects documented on the EMS RMR) will void the EMS RMR authorization. The maximum time window that EMS will accept requests for RMR authorization numbers is one year from the date of product shipment from EMS. For product susceptible to oxidation, as previously agreed-to by Buyer and Seller, the maximum time window that the EMS RMR will be accepted for oxidation related problems (including rust) is two months from the time of product shipment, provided that the product has been maintained in its original packaging and has not been exposed to excessive humidity or other harmful environments.