Terms & Conditions of Sale

Description

01.
Definitions

Definitions. For the purposes of this Agreement, the following definitions shall apply:

(a) "Agreement"

“Agreement” means Seller’s Proposal, together with these Terms and Conditions of Sale.

(b) "Confidential Information"

“Confidential Information,” whether disclosed in written, oral, visual or tangible form, disclosed by Seller to Customer, shall include such Seller’s financial, customer, product, technical, and business information, including, but not limited to, product specifications, process designs, trade secrets, financial statements, strategic plans, customer lists, marketing plans, personnel information, and know-how; provided, however, that “Confidential Information” shall not include any information that: (a) at the time of disclosure is generally available to the public or, after disclosure, becomes generally available to the public other than by a breach of this Agreement or by any breach of confidentiality by a third party; or (b) is already in the Customer’s possession at the time of disclosure by the Seller and was not acquired directly or indirectly from the Seller; or (c) is later received by Customer on a non-confidential basis from a third party having the right to impart that information.

(b) "Confidential Information"

“Confidential Information,” whether disclosed in written, oral, visual or tangible form, disclosed by Seller to Customer, shall include such Seller’s financial, customer, product, technical, and business information, including, but not limited to, product specifications, process designs, trade secrets, financial statements, strategic plans, customer lists, marketing plans, personnel information, and know-how; provided, however, that “Confidential Information” shall not include any information that: (a) at the time of disclosure is generally available to the public or, after disclosure, becomes generally available to the public other than by a breach of this Agreement or by any breach of confidentiality by a third party; or (b) is already in the Customer’s possession at the time of disclosure by the Seller and was not acquired directly or indirectly from the Seller; or (c) is later received by Customer on a non-confidential basis from a third party having the right to impart that information.

02.
Master Agreement

This Agreement sets out terms and conditions applicable to all goods and services sold by any Seller to Customer from time to time, unless expressly agreed otherwise in writing by the applicable Seller. Freedom is executing this Agreement on behalf of itself and each Seller providing goods and services hereunder. Each Seller will sell goods and services to Customer only under the terms and conditions of this Agreement. Except as expressly acknowledged by Seller as an amendment to this Agreement, all contradictory or additional terms and conditions contained in any purchase order or other writing of Customer will not apply to any order from or sale to Customer.

03.
Acceptance of Orders

All orders from Customer are subject to acceptance by Seller. Seller’s acceptance of any Customer purchase order is conditional on Customer’s agreement to the terms and conditions of this Agreement. If Seller provides goods and/or services in response to any order from Customer, then the provision of such goods and/or services will signify acceptance by Seller only of the quantity and type of goods and/or services provided. Any acceptance by Customer of Seller’s Proposal is expressly limited to acceptance of this Agreement and any applicable Proposal. Seller objects to terms or conditions additional to or different from this Agreement and any Proposal, whether or not material. If it is determined that Customer’s order is an offer, then any acceptance by Seller is expressly conditioned on Customer’s assent to this Agreement. Seller’s Proposal, this Agreement and any other provisions which are otherwise agreed to in writing by Seller constitute the complete and exclusive statement of the agreement superseding any differing statements, oral or written.

04.
Reliance on Customer Information

Seller relies upon the accuracy, completeness and timeliness of any and all information furnished or to be furnished by Customer,
including, but not limited to, any technical design,
engineering and test data, manufacturing methodology, drawings, plans, designs and specifications, software such as computer aided engineering and design programs and models (“Customer Information”). Any inaccuracy in the
Customer Information or delay in furnishing the Customer Information to Seller may result in increased costs or affect the timing of Seller’s performance. In the event of such inaccuracy, Seller reserves the right to change the Proposal
or any other document relating to the Products in order to correct such inaccuracy. Customer shall pay all such increased costs and be responsible for any delay in Seller’s performance resulting, directly or indirectly, from any inaccuracy in the Customer Information or delay in furnishing the Customer Information. Customer represents
and warrants that it is the owner of all Customer Information furnished to Seller and agrees to defend, indemnify and hold Seller harmless with respect to all claims of any third party of infringement or related claims associated with Seller’s use or reliance upon the Customer Information.

05.
Cancellation of Orders

All orders from Customer that are received and accepted by Seller are “firm” contracts and
Customer may cancel only with Seller’s written consent and
upon payment of reasonable cancellation charges, including reimbursement of Seller’s direct costs incurred, normal,
indirect, and overhead charges, and a normal profit, all as reasonably determined by Seller. No Seller will accept
cancellation, modification, suspension, or delay in shipment
of Customer’s order on terms that will not fully indemnify
and reimburse the Seller against loss. Such indemnity will
include recovery of all direct costs incurred, including
normal indirect and overhead charges and a normal profit.

06.
Price

Unless Seller agrees otherwise in writing, Customer agrees to pay Seller’s price in effect at the time an order is accepted by Seller for all goods and services ordered. Customer also agrees to pay all applicable Taxes (as defined below) and freight charges related to Customer’s orders.

07.
Proposals

If Customer is responding to a Proposal provided by Seller when ordering, then Customer shall include the Proposal number on all orders that are based on the Proposal. In general, each Seller holds quotations within Proposals open for thirty (30) days. However, unless expressly designated as “firm” for a specific length of time, all Seller Proposals, price lists, discount schedules, and other promotional programs, and freight schedules may be changed by Seller without notice. Prices that are based on the continued production of the quantity specified on a Seller Proposal are subject to change upon any change in such Proposal requested by customer. Proposals are also subject to revision in case of clerical error.

08.
Catalogues, Price Lists, Discount Schedules, and Special Sales Terms

Products advertised in Seller’s catalogs, price
lists, discount schedules, and special sales terms are subject
to changes at any time and may not be kept in stock by Seller.
Customer agrees that Seller shall not be held liable for any
errors or omissions in its catalogs, price lists, discount
schedules, and special sales terms, or any differences
between any catalogue illustration and the goods and/or
services provided to Customer

09.
Pricing Changes, Taxes, and Fees

Seller reserves the right to change its prices prior to formation of a binding agreement or as provided in an applicable Proposal. Unless otherwise stated in a Proposal to Customer, prices are FCA (Incoterms), and do not include sales, use or excise taxes, custom duties, or similar taxes and fees (“Taxes”), which are the responsibility of Customer in addition to the quoted price. To the extent that Seller is required to pay any Taxes related to the sale of goods and services under this Agreement, Seller will invoice Customer for such Taxes. Where applicable, the Customer will provide Seller with an effective tax-exemption certificate. Seller shall be entitled to retain any export duty drawbacks if Seller is the exporter of record.

10.
Payment Terms

Payment terms, other than the prepayment of quoted prices, are subject to credit approval, which shall be granted or denied in Seller’s sole discretion. Interest of one and one half percent (1.5%) per month may be assessed on all amounts not paid by Customer when due. To secure payment and Customer’s other obligations, Seller retains and Customer hereby grants to Seller a security interest in all Products not fully paid for in advance by Customer. Customer will sign and deliver any financing statement agreement and other documentation or evidence of the security interest requested by Seller. Customer also hereby appoints Freedom as Customer’s attorney-in-fact for the execution and filing of such financing statements as may be necessary or desirable in order to protect Seller’s interest in the Products. Unless payment terms are provided in an applicable Proposal, the payment terms for goods and services provided hereunder are as follows:

Shipments to the United States or Canada. If credit is granted to Customer by Seller, payment terms for shipments to the U.S. or Canada will be net cash due thirty (30) days from invoice date.

Shipments outside the United States and Canada. If credit is granted to Customer by Seller for shipments outside of the United States and Canada, the same terms will apply as shipments to the United States or Canada, except that: all payments must be made in U.S. dollars; Payment for all Products selling for more than US $50,000 must be made by an irrevocable LoC drawn on an account at, and confirmed by, a U.S. bank and must: (i) cover the full amount of the purchase price, less the amount of any advance payment; (ii) accompany the order and carry an expiration date at least one hundred twenty (120) days beyond the scheduled shipping date; (iii) allow partial draws upon invoice coinciding with progress payments, and (iv) be otherwise payable upon presentation of bill of lading, commercial invoice, and packing list. If, however, Seller is unable to ship for any cause beyond Seller’s reasonable control, Seller shall have the right to draw upon the LoC by furnishing a certificate of manufacture. Storage will be solely at Customer’s expense and risk.

11.
Shipment and Delivery

The shipping schedule and delivery dates may be provided in a Proposal and will generally be computed from the date of Seller’s acknowledgment of the receipt of any required down payment and the Customer Information and approvals necessary to proceed with design and manufacture. Shipment and delivery may be subject to delays caused by changes in specifications and other Force Majeure events (as
defined below) that are beyond Seller’s control. All risk of loss and damage passes to Customer per INCOTERMS. In the absence of specific instructions from Customer, Seller may select the carrier and shipping route. All shipping and carrier charges are the sole responsibility of Customer and may be invoiced by Seller if incurred by Seller on behalf of Customer.

12.
Limited Warranty; Remedies

Unless otherwise set forth below, or otherwise provided in an applicable Proposal, a
defective or nonconforming Product or part thereof will be repaired or, at Seller’s option, replaced free of charge, FCA, if a warranty claim with regard to such defective or nonconforming part is made within twelve (12) months from
the date of shipment (the “Limited Warranty”). Unless provided in an applicable Proposal, Seller does not warrant any Product beyond this twelve (12) month period (the “Limited Warranty Period”). The Limited Warranty does not cover or extend to: (a) any Product that has a life, under rated and normal usage, inherently shorter than the applicable warranty period (e.g., perishable tooling) or consumables, including without limitation, coolant, cryogenic seals, bulbs,
filters, fuses, inserts, or recommended spare Parts or (b) normal adjustments or calibration, or the failures arising from Customer’s failure to perform adjustments or calibrations; or (c) defect or nonconformance resulting from Customer’s use of any Product in a manner that is inconsistent with Seller’s documentation for such Product or is outside of Seller’s anticipated use of such Product. Seller may condition warranty replacement upon return of any defective or nonconforming Product or Part. Customer shall pay the then-current list price for any replacement Parts unless the defective or nonconforming Part is returned to Seller within thirty (30) days of receipt of the replacement Part. Seller reserves the right to deny a warranty claim if the Customer denies the Seller access to the information reasonably requested by Seller related to the defective or nonconforming Product or Part. 

Retrofit Warranties. Retrofits on Seller machine tools are warranted in accordance with the Limited Warranty set forth above, except that the warranty period on labor is ninety (90) days (“Labor Warranty”). The Labor Warranty applies only to Parts replaced as part of the retrofit, the failure of which are not caused by the machine or other Parts not replaced as part of the retrofit. Such Parts replacement is Customer’s exclusive remedy for retrofits. Any complete machine tool returned to Seller’s factory for retrofit will be warranted in accordance with the Limited Warranty set forth above. Mechanical assemblies or other components rebuilt by Seller or provided on an exchange basis, such as boring and facing heads, fixtures, etc. will be warranted in accordance with the Limited Warranty set forth above, except that such warranty claims must be made within six (6) months from date of shipment from Seller’s factory. Cutting tools, holders, and coolant are warranted in accordance with the applicable Proposal, if any. Other retrofit tooling manufactured by Seller will be warranted in accordance with the Limited Warranty outlined above, except that the warranty period will be ninety (90) days from the date of shipment. 

Software Warranty. Seller warrants that Software Materials will generally operate substantially in accordance with Seller’s current specifications for such Software Materials. In the event that Software Materials do not operate substantially in accordance with Seller’s current
specifications for such Software Materials, Seller will supply a software correction free of charge, if (a) a substantiated warranty claim is made within one (1) year after acceptance; (b) Customer provides Seller with a sufficient description of the problem, and (c) the correction does not involve new Software Materials to serve a function not originally specified. The foregoing warranty shall be void if changes or additions are made to Software Materials by the Customer without Seller’s express prior approval. Failure of Customer to promptly employ any update,
upgrade or revision of any Software Material which Seller supplies free of charge will void this warranty and fully release Seller from any and all liability arising out of or related to such failure. Third-party Products, including, but not limited to, Software Materials, will be warranted only to
the extent that they are warranted by their respective manufacturers. 

All warranty claims must be made within two (2) weeks after discovery of defect or nonconformity. In no event will any warranty claim be made or honored if made after the expiration of the applicable warranty period. The limited warranties set forth in this Section: (i) are not transferable or
assignable; (ii) will not apply unless the Product has been properly installed, maintained and operated in accordance with all instructions and within the limits of rated and normal
operating conditions; (iii) do not apply to defects,
nonconformities or other failures due to Product misuse or abuse, or other causes outside Seller’s control; and (iv) are void if the Customer provides the Seller with incomplete or misleading information. 

If, after a reasonable number of repeated efforts, Seller is unable to repair or replace a defective or nonconforming Product, Seller may, in its sole discretion, accept return of
the Product (or Part thereof, if such does not substantially impair its value) and return the purchase price paid by the Customer for the Product or Part thereof as Customer’s
entire and exclusive remedy. Under no circumstances will Seller have any liability whatsoever for loss of use or downtime, lost production, revenue or profits, or for any
other indirect, special, incidental or consequential damages, whether such liability is based on contract (including breach of warranty or representation) or tort (including negligence
or strict liability) or other legal theory whatsoever, even if Seller had notice of the possibility of such damages and even if any warranty or remedy or this Agreement is held to have failed its essential purpose. 

THE WARRANTIES SET FORTH IN THIS SECTION, AND ANY SUCH ADDITIONAL WARRANTY OR REPRESENTATION TO THE EXTENT AGREED TO IN WRITING BY SELLER, ARE IN LIEU OF, AND SELLER EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 

In the event that the foregoing disclaimer of additional warranties is not given full force and effect, any resulting additional warranty shall be limited in duration to the express warranties and be otherwise subject to and limited by this Agreement. In the event the Limited Warranty is voided as a result of Customer’s acts or omissions, Customer shall reimburse Seller for reasonable costs Seller incurred in connection with the voided Limited Warranty.

13.
No Uptime Warranties

To the limited extent an uptime warranty is expressly agreed to by Seller in writing, Customer agrees that Seller shall not be responsible for downtime attributable to or caused by: nonproductive hours (weekends, holidays or off-shifts, etc.); normal or preventive maintenance; tooling application changes or tool breakage; set-up; operator absence; unavailability of programs, tools or fixtures; improper use, programming, maintenance or operation; user’s improper fault diagnosis or repair; searching for non-demonstrable (non-repeatable) faults; Force Majeure event or disruption of utilities or other support, such as, air supply, central coolant and the like.

14.
Acceptance

Unless Customer has notified Seller of Customer’s decision not to accept a Product, each Product shall be deemed accepted upon the earliest of: (a) the first commercial use of the Product by Customer or (b) ten (10) days after completion delivery and installation of the Product
by Seller (to the extent that installation is required under any applicable Proposal). Acceptance tests or part runoff tests will limit acceptance of Products and/or require Seller’s resources only where Seller expressly agrees to such tests in
writing, signed by an authorized representative of Seller. Customer, at its expense, will furnish parts (work pieces) in sufficient quantity and quality to meet the requirements of any such agreed-upon tests or runoff. Seller is not responsible for (1) late or unsuccessful tests due to Customer’s failure to supply such work pieces, or (2) damaged or scrapped work pieces. Unless, and to the limited
extent expressly agreed to in writing by Seller, any acceptance, runoff or other performance criteria shall not be deemed to be warranties.

15.
Production Estimates

Estimates provided by Seller of uptime, cycle time or other Product capability statements, if any, shall not be deemed to constitute production warranties or guarantees of any kind. Seller does not make production warranties or guarantees. Production estimates, if any, are estimates only, and are based on Customer’s prints, specifications or other Customer information available at time of the applicable Proposal. The actual production capability of a Product is entirely dependent upon production and other conditions in Customer’s plant, which are beyond Seller’s reasonable control.

16.
Ownership of Intellectual Property

Seller retains all rights and title in and to all of Seller’s inventions, discoveries, concepts and ideas embodied in its Products, related documentation and other technical data, delivered or disclosed to Customer verbally or in drawings, written or printed matter, electronic storage media, or other form whatsoever (“Developments”). The Products created and prepared by Seller, shall not be treated as Work Made for Hire, as that term is defined by the Copyright Act (17 U.S.C.A. Section 101). Customer agrees and acknowledges that any Software Materials (including, without limitation, system or cell manager software) will be licensed pursuant to the terms and conditions of Seller’s standard Software License Agreement in effect on the order date, and acknowledges that Seller is under no obligation to deliver any such Software Materials to Customer before receiving a duly-executed copy of such Software License Agreement. Except as expressly licensed under the Software License Agreement, Seller shall retain any and all rights to Software Materials, and any related manuals and other documentation supplied by Seller. Customer will be granted a limited, nonexclusive, non-transferable, non-assignable license to use the Software Materials only with the Product with which the Software Materials are furnished. Customer shall not remove, modify, or destroy any proprietary markings of Seller, including, but not limited to, legends and notice of Seller’s ownership and title to trademarks, trade names, trade secrets, copyrights, or patents placed upon or contained within the Software Materials, and shall reproduce all such markings upon or within authorized copies of the Software Materials. Customer shall take no action that jeopardizes or diminishes the value of any of Seller’s Intellectual Property Rights. Customer shall not use any trademark or service mark of any Seller without the prior written consent of the Seller. Any permitted use of Seller’s Intellectual Property Rights by Customer shall be done with strict adherence to the most recent written guidelines provided by Seller and is subject to Seller’s prior written approval in each instance.

17.
Confidential Information

Confidential Information may be used or disclosed by Customer only as provided herein. Customer, on behalf of itself and its employees and agents,
agrees that, during the period of its business relationship with any Seller and for a period of two years thereafter Customer shall not at any time disclose to any person, or use for its own benefit or the benefit of any third party, any Confidential Information without the prior written consent of the Seller. Notwithstanding the foregoing, Customer may disclose Confidential Information to one or more third parties if it is required to do so pursuant to law, court order or other directive of a legislative body. Customer shall disclose such Confidential Information only to those employees of Customer who: (i) have a need-to-know such
Confidential Information in the performance of their duties associated with business relationship between Customer and Seller and (ii) are advised by Customer of the confidential nature of such information and are bound by Customer to
maintain such in confidence. Customer shall maintain at least the same degree of diligence in the protection of the Confidential Information as it uses with regard to its own proprietary information. All Confidential Information is
provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness, operability, fitness for particular purpose, or any other warranty, express or implied. Seller shall not be liable to Customer for any damages, loss, expense, or claim of loss arising from use of
or reliance on the Confidential Information. For purposes of clarification, Customer shall keep confidential and not disclose, reproduce, excerpt or distribute any portion thereof of Software Materials, Developments and other proprietary
information of Seller, including but not limited to all information located on Seller paper or letterhead. Each Seller shall retain ownership of all rights, including all Intellectual Property Rights, in its Confidential Information. No other right, immunity or license to the Confidential Information, express or implied, is granted by Seller to the Customer pursuant to this  agreement under any patent, patent application, copyright, trademark or other Intellectual Property Right, now or hereafter owned or controlled by
Seller. The limitations on the use and disclosure of Confidential Information set forth in this Agreement shall continue for a period of two (2) years after the expiration or termination this Agreement; provided, however, that any
Confidential Information that constitutes a trade secret under applicable law shall be subject to the limitations on the use and disclosure of such information hereunder for as long as such Confidential Information constitutes a trade secret
under applicable law. Upon the expiration or termination of this Agreement, Customer shall promptly return or destroy all Confidential Information that Customer received from
Seller, in whatever form, without retaining any copies or excerpts thereof. Seller reserves all Intellectual Property Rights to standard assemblies. Seller agrees that Customer
may use drawings or documentation provided with Products for maintenance purposes, but may not use them for manufacturing purposes.

All information submitted to Seller by Customer shall be deemed to be submitted on a non-confidential basis unless agreed otherwise in writing.

18.
Services

Seller may provide services to Customer from time to time, including, without limitation, simultaneous engineering or other technical, managerial or engineering services. The parties anticipate that the terms and conditions
related to such services will be governed by a separate written agreement signed by the parties. Seller retains all right, title and interest in and to the design and any Intellectual Property Rights resulting from any services provided to Customer, unless and to the limited extent expressly agreed to in writing by Seller, signed by an authorized representative of Seller

19.
Intellectual Property Infringement

Customer shall provide Seller with prompt written notice and copies of any and all demands, process and pleadings alleging that any Product or Part, or use of either of the foregoing, infringes
on the Intellectual Property Rights of another  entity. If any Product, in the condition received from Seller, infringes the Intellectual Property Rights of a third party (other than a claim covering a process or the product thereof), Seller may,
at its option (i) procure for Customer the right to use the Product; or (ii) modify or replace the Product so as to avoid infringement. In the event that (i) or (ii), accept return of the Product and reimburse Buyer for the unamortized portion of
the purchase price assuming straight-line amortization over a ten (10) year period and any transportation expenses incurred. Freedom will defend Buyer against infringement claim and pay any damages and costs and expenses awarded
against or incurred by Buyer. Buyer shall give Freedom prompt written notice and copies of all demands, process and pleadings and Buyer shall reasonably cooperate in giving Freedom authority, control, information and assistance at
Freedom’s expense for such defense or any settlement. This Section states Seller’s entire liability with respect to any infringement of Intellectual Property Rights. Customer hereby releases and shall defend and indemnify Seller from liability arising from Product designs that are manufactured, implemented or integrated by Customer or third parties. To the extent that any Product is supplied according to Customer’s design or instructions, Customer agrees to
defend and indemnify Seller for any claim that such Product infringes the Intellectual Property Rights of another entity.

20.
Term

Unless otherwise specified on the Proposal, the term of this Agreement shall begin on the date of Seller’s acceptance of Customer’s order and shall continue until such time as Seller receives payment in full for delivery of all Products ordered by Customer.

21.
Termination

This Agreement may be terminated at any time, and for any reason, by Freedom, upon thirty (30) days written notice to Customer; provided, however, that upon termination of this Agreement by Freedom, any payments for Products that have not been delivered within ninety (90) days of the date of termination shall be returned to Customer less any expenses incurred by Freedom prior to termination as a result of the acts or omissions of Customer.

22.
Change to Orders

This Agreement may not be modified following Seller’s acceptance, except by written agreement
of the parties. Any Customer-ordered or caused changes, including work stoppages, that affect price, schedule or Seller’s performance, will result in a reasonable adjustment in price and/or time of performance, as determined by Seller.
Seller may suspend its performance or perform under the original agreement until mutual agreement is reached on such adjustment.

23.
Termination of Orders

Upon termination of any order, Seller will be compensated as follows:

This document was last updated on January 28, 2020

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