Customer Terms and Conditions
- TERMS AND CONDITIONS – CUSTOMERS
Fralock LLC’s companies, including, without limitation Lockwood Industries LLC, Lenthor Engineering Inc., Oasis Materials Company LLC, Ceramic Tech, Inc. and Circuit Services LLC (in each case hereinafter referred to as “Manufacturer” or “Fralock”) are represented in the following Terms and Conditions of Sale.
The sale of all products and services by Manufacturer to the purchaser (“Buyer”) shall be subject to and governed by these terms and conditions of sale (these “Terms and Conditions”). Manufacturer’s acceptance of any order or other offer by Buyer (whether in writing, by telephone or otherwise) for any products or services shall be conditioned upon Buyer’s agreement to these Terms and Conditions.
Such assent shall be deemed given upon the earlier of: (i) Buyer’s acceptance of these Terms and Conditions pursuant to a credit application containing or referencing these Terms and Conditions; (ii) Buyer’s acceptance of these Terms and Conditions pursuant to a separate agreement by and between Manufacturer and Buyer containing or referencing these Terms and Conditions (a “Separate Agreement”); (iii) Buyer ordering products or services from Manufacturer based on a Manufacturer quotation or proposal, or by means of purchase order submitted by Buyer and accepted by Manufacturer (the “Order”); or (iv) payment by Buyer to Manufacturer for Manufacturer’s products or services, however gained, including, without limitation, in a Manufacturer quotation, proposal, acknowledgement, bill of lading, invoice or any other writing (including, without limitation, electronic correspondence).
No additional or different terms or conditions, whether contained in a purchase order or any other communication from Buyer (whether written or oral and whether previously given or later asserted), shall be binding upon Manufacturer (unless specifically agreed to in writing by an executive officer of Manufacturer), and Manufacturer objects to and rejects any provision additional to or different from these Terms and Conditions.
The failure of Manufacturer to object to any such additional or different terms or conditions shall not be a waiver of these Terms and Conditions or an acceptance of such additional or different terms or conditions.
No modification or amendment of, or addition to, these Terms and Conditions or any Buyer order accepted by Manufacturer shall be binding unless in writing and signed by an executive officer of Manufacturer.
- 1. Recital
Manufacturer is an engineering solutions and manufacturing services provider that furnishes the personnel, material, equipment, services and facilities to manufacture products for original equipment manufacturers and other third parties in accordance with specifications provided by such OEMs and third parties.
Buyer desires to engage Manufacturer to manufacture certain of Buyer’s products in accordance with a purchase order, order or quotation issued from time to time by Buyer.
- 2. Statement of Work
Buyer hereby engages Manufacturer, and Manufacturer hereby accepts Buyer’s engagement, to furnish the personnel, material, equipment, services and facilities to manufacture Products in accordance with Buyer provided specifications (For example, but not limited to: BOM, AML, Gerber Files, CAD Files, Test Processes, Mechanical Drawings, Performance Specifications) agreed to in writing by Manufacturer (the “Specifications”) and other special instructions as required by Orders issued by Buyer and accepted in writing by Manufacturer in accordance with Section
3. Manufacturer’s services shall be performed in accordance with the Specifications.
- 3. Ordering
Manufacturer’s terms and conditions of acceptance are solely within the Manufacturer’s discretion. Buyer’s Orders shall set forth for each ordered Product: the quantity, the applicable Purchase Price and total price, delivery and shipping instructions, the requested delivery schedule, which may be adjusted through regular status reports issued by the Manufacturer in accordance with Section 4.
All Orders shall be governed by these Terms and Conditions, which shall not be changed or supplemented without written acceptance by the Manufacturer. Pre-printed terms and conditions on Buyer’s Order form, if any, shall not apply to the Order. No Order is accepted unless Manufacturer issues a Sales Order Acknowledgement.
Order Modification, Cancellation, or Delivery Schedule Changes requested by Buyer will be binding on the Manufacturer only upon Manufacturer’s written acceptance of the request and upon terms, satisfactory to Manufacturer that compensate Manufacturer for all Costs incurred by reason of such modification, cancellation or deferment.
“Costs” as used herein includes engineering, production and overhead costs attributable to the order as well as Inventory and Excess Inventory and profits not realized by the Manufacturer due to modification, cancellation or schedule changes.
In the event of Order cancellation (i) Manufacturer will ship and Buyer will accept all Products completed, as well as work in the process of completion and associated inventory, prior to the cancellation date and (ii) the Product warranty will not apply to incomplete product as the result of a cancelled Order.
Tooling and Fixtures required to manufacture Buyer’s products, will be a one-time charge based on a quote for each design. After one year of inactivity the tooling and fixtures will be disposed of.
- 4. Shipment and Delivery
Manufacturer will ship Products in accordance with each accepted Order, subject to these Standard Terms and Conditions. Delivery of Products shall be made F.O.B at the loading dock of the Manufacturer’s facility on the dates specified on the Order or subsequent agreed to delivery schedule.
Title to, and risk of loss for, Products shall pass to Buyer at the time of delivery of possession of the Products to a common carrier.
- 5. Acceptance
The Product shall be deemed accepted by Buyer when the Product has passed Manufacturer’s inspection and conforms to Specifications and is delivered to Buyer, namely, placed it in the hands of a common carrier.
Buyer shall have 30 days to notify Manufacturer of Buyer’s revocation of acceptance of Product based on non-conformance to the Specifications.
Buyer’s revocation must be in writing and shall describe the defect in sufficient detail to permit Manufacturer to inspect and if needed isolate, the defect.
Failure to so notify Manufacturer in writing of any claim within thirty (30) days after tender to Buyer shall constitute an irrevocable acceptance of the Products and an admission by Buyer that the Products comply fully with all terms, conditions and Specifications of the corresponding Order.
- 6. Prices, Invoicing and Payment
Buyer shall pay Manufacturer the Purchase Price as set forth in the Sales Order Acceptance or in any invoice pertaining to a modification or cancellation. The Purchase Price is exclusive of packaging, shipping and insurance costs, duties, and federal, state and local taxes, which shall be borne by Buyer. Manufacturer shall invoice Buyer concurrently with each Product shipment.
An invoice will include the invoice date, the Order number, and the total price and name (if applicable) and address where payment is to be sent. Buyer shall pay all invoices within thirty (30) days of the invoice date.
Payment shall be made in U.S. dollars. Payment not received when due shall bear interest at the rate of 1½% monthly from its due date until paid.
- 7. Engineering Changes
If Buyer requests that Manufacturer incorporate an engineering change into a Product, such request shall include a description of the proposed change sufficient to permit Manufacturer to evaluate it.
Manufacturer’s evaluation shall be in writing and shall state the impact of the requested change on the existing delivery schedule and Cost.
Manufacturer shall not be obligated to proceed with a requested change until the parties have agreed in writing on the changes to the Product, Specifications, estimated delivery schedule and pricing, including the price for additional NRE, rework, tooling and obsolete materials and testing, if any.
- 8. Force Majeure
Neither party shall be liable for its failure to perform due to any occurrence beyond its reasonable control, including acts of God, fire, floods, war, terror, sabotage, accidents, pandemic or health crisis, labor disputes or shortages, governmental laws, ordinances and regulations, allocations and price restrictions, inability to obtain material, equipment or transportation, or any other similar occurrence; provided, however, Buyer’s payment for Products produced and shipped shall not be suspended by any event of force majeure.
The party whose performance is prevented by any such occurrence shall promptly give written notice to the other party of the cessation of performance.
- 9. Intellectual Property and Confidentiality
(a) Ownership of Intellectual Property.
Title to and ownership of all of the technology, trade secrets, knowhow and information regarding Products supplied by Buyer to Manufacturer shall remain in Buyer.
Buyer hereby grants Manufacturer a limited, non-transferable, non-exclusive revocable license to use Buyer’s software, technology, trade secrets, knowhow and proprietary information (“Proprietary Information”), free of any claim or allegation by Buyer of misappropriation or infringement by Manufacturer of Buyer’s Proprietary Information; provided, however, that Manufacturer’s license to use Buyer’s Proprietary Information shall endure only for the term of the accepted Order.
After the termination or expiration of an accepted Order, Manufacturer shall have no further rights to use Buyer’s Proprietary Information as to that Order and if requested, Manufacturer shall return to Buyer all documents and materials relating to Buyer’s Proprietary Information. Title to and ownership of any Proprietary Information of used by Manufacturer in the operation of its business shall remain the property of Manufacturer.
(b) Confidentiality.
The parties acknowledge that each party’s Propriety Information set forth in Section 9 (a) contains valuable trade secrets. Each party agrees that it will maintain and protect the confidentiality of the other party’s Proprietary Information using the same standard of care that such party uses to protect its own Proprietary Information, which in no event shall be less than reasonable care. The obligation to keep each party’s Proprietary Information confidential survives the termination or expiration of the accepted Order.
- 10. Manufacturer Restrictions as to Use of Products
Manufacturer makes no warranty express or implied with respect to fitness for use or intended uses by Buyer of the Products. Buyer to inform Manufacturer of intended use of the Product and assumes all liability for the product performance.
Without limiting any other terms hereunder, Buyer shall indemnify manufacturer against any claim, loss, liability and expense (including reasonable attorney fees) on account of any damage to property or injury or death of persons (including without limitation Buyer’s employees and other personnel) arising out of Buyer’s or its customer’s handling, storage, use, or sale of the Products or the failure of Buyer to comply with all federal, state, and local laws, rules and regulations concerning the transportation, storage, use, sale and disposal of products including all safety and environmental laws, rules and regulations.
Buyer shall be responsible for complying with US EAR, ITAR and any other governmental compliance requirement upon receipt of Products.
- 11. Product Warranty
Manufacturer warrants that Products supplied to Buyer hereunder will conform to Buyer’s Specifications for a period of ninety (90) days from the date of delivery of the Products to Buyer.
Warranty does not apply to ‘wear’ parts that have specific lifetimes less than 90 days. Within the warranty period set out above Buyer may notify Manufacturer in writing, of any Product defect, which notification shall describe the defect in sufficient detail to permit Manufacturer to isolate the defect.
The failure to specify any particular defect or other non-conformity shall constitute a waiver by Buyer of that defect or other non-conformity.
In no event are products to be returned by Buyer without in each instance obtaining Manufacturer’s prior written authorization, and Manufacturer reserves the right to refuse any products returned for credit without such prior written authorization.
Upon notification from Buyer, Manufacturer will provide Buyer with instructions on returning the Product under a warranty claim. Upon receipt of any Products returned by Buyer pursuant to this Section 11, Manufacturer shall inspect Products in accordance with the applicable Specifications.
If Manufacturer determines that the defect is not due to nonconformity with Specifications or is unable to isolate any defect or malfunction in the Product, then Buyer is solely responsible for isolation of the defect or malfunction and Manufacturer will seek instructions on whether Manufacturer should return the Product to Buyer or dispose of it.
Manufacturer will not be responsible for transportation costs or for the costs of removal, installation, re-installation or making of access of any products or items, where such transportation, removal, installation, re-installation or making of access is required to repair or replace any defective products.
Furthermore, Manufacturer will not be responsible for and assumes no liability for materials or workmanship, labor costs or other related expenses for any work performed by third parties in the repair or replacement of defective products or the re-performance of services.
- 12. DISCLAIMER
- 13. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE MANUFACTURER BY LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTIAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING LOSS OF PROFITS DAMAGES, ARISING OUT OF THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT, OR USE OF ANY PRODUCTS OR THE FURNISHING OF ANY SERVICE, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT, STRICT LIABILTIY OR OTHERWISE, EVEN IF BUYER HAS BEEN WARNED OF THE POSSIBLITY OF ANY SUCH DAMAGES.
LIMITATION OF LIABILITY. THE CUMULATIVE LIABILITY OF SELLER AND ITS AFFILIATES FOR ANY CLAIM OF ANY KIND OR FOR ANY LOSS OR DAMAGE RELATING TO THE PRODUCTS OR SERVICES SHALL IN NO EVENT EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS OR SERVICES WHICH GIVE RISE TO ANY SUCH CLAIM, LOSS OR DAMAGE, WHETHER ARISING UNDER WARRANTY/GUARANTEE, CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, DEFENSE OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER.
- 14. Indemnification
Buyer shall defend, indemnify and hold Manufacturer and its subsidiaries, officers, directors, employees, agents and representatives harmless from any and all claims, demands, liabilities, actions, suits, proceedings, losses, injuries, death, judgments, and/or costs (including without limitation reasonable attorneys’ fees and related costs) based on or arising out of any claims or demands based on or relating to:
Manufacturer’s use of Buyer’s Proprietary Information, the design of the Products; Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the Products; Buyer’s violation or alleged violation of any federal, state, or local laws or regulations, including the laws and regulations governing product safety, labeling, packaging and labor practices; or a breach by Buyer of any of these terms and conditions.
Manufacturer shall give written notice of any claim or potential claim to Buyer within a reasonable time following the time at which Manufacturer first became aware of the claim for indemnification hereunder.
Buyer may, at its option, have control of any litigation and appointment of counsel in defense of any third party claim for which Manufacturer seeks indemnification. No suit or proceeding shall be settled or compromised without the prior written consent of Manufacturer.
The obligation to indemnify under this shall survive the termination or expiration of the accepted Order.
- 15. Governing Law
(a) These Terms and Conditions and the agreements referenced herein constitute the entire agreement of the parties with respect to Manufacturer’s services for Buyer and can be modified only by written agreement.
(b). Governing Law. The validity, interpretation and performance of these Terms and Conditions shall be governed by the laws of the State of California, without regard to conflicts of laws principles.
Venue for any suit, action or proceeding pertaining to these Terms and Conditions, including any Order, Invoice, Warranty or indemnification claim, shall be in the state or federal courts of the State of California, as Manufacturer elects.
In any arbitration, suit or action to enforce these Terms and Conditions or for the breach of same, the prevailing party shall be entitled to recover from the losing party all of its costs and expenses therein, including expert fees, deposition costs and attorneys fees as fixed by the arbitrator, trial court and appellate court.
- 16. Survivability, Assignment
These Terms and Conditions shall bind the successors and assigns of the parties hereto, including any entity with which, or into which Manufacturer may be merged or which may succeed to its assets or business.
The rights and duties hereunder are not assignable or transferable by Buyer, in whole or in part, by operation of law or otherwise, without the prior written consent of Manufacturer that may be granted or withheld in its sole discretion.
Any assignment or attempted assignment in contravention of the foregoing shall be null and void, shall be considered a breach of these Terms and Conditions and shall permit Manufacturer, in addition to any other rights which it may have, to terminate the contract between Manufacturer and Buyer. Manufacturer shall have the right to assign any rights or obligations hereunder to any third party.
Rev. 1.5 (1/10/2023)
