Terms and Conditions

Premier Machining Technologies, Inc. (the “Company”) sells/provides goods and/or services (“Deliverables”) on the following terms and conditions unless otherwise agreed by the Company in a separate writing signed by a duly authorized officer of the Company. The Company may sell/provide Deliverables to a customer in response to a customer’s proposal or purchase order form (each a “Purchase Order”) as a matter of convenience for the purpose of the customer’s identifying the Deliverables to be purchased from the Company and other details specific to the transaction, such as size, quantity, delivery address, and requested delivery dates (“Order Specifications”).  No pre-printed terms and conditions on a customer’s Purchase Order shall apply. Accordingly, except for the Order Specifications, only the following terms and conditions shall apply to such transaction notwithstanding anything to the contrary in the customer’s Purchase Order.

 

1.Contract:  Only Order Specifications which are accepted by the Company and these terms and conditions of sale apply to the Deliverables and shall constitute the entire agreement between Customer and Company regarding Company’s sale of Deliverables to Customer (the “Contract”).  All modifications and/or contradictory terms and conditions shown on any Purchase Order, or other documents or instruments of Customer are objected to and void unless specifically agreed to in writing by Company’s authorized representative.  In the event of a conflict between these terms and conditions and any Order Specifications or the other content of a Purchase Order or any other document or instrument of Customer, these terms and conditions of sale shall prevail.

2.Prices; Taxes:  Unless otherwise specified, prices quoted do not include any applicable present or future sales, use, privilege or other taxes, or any export or import taxes, customs duties, brokerage fees, freight, insurance, container packing or the like, all of which shall be for the account of and be paid by Customer.  Applicable taxes, if any, shall be paid by the Customer either directly to the taxing authority or, if collected by Company, to Company upon receipt of Company’s invoice for the amount of the tax.  In the case of controversy as to whether this transaction is taxable, Customer agrees to remit the amount of the tax to the Company pending a specific ruling from the taxing authority which assesses or collects the tax.

3.Payments:  Terms of payment shall be as agreed upon.  If completion of manufacture or shipments are delayed by Customer, Company reserves the right to regard date of completion as date of shipment and require payment based upon percentage of completion.  Deliverables held as a result of Customer’s inability or refusal to accept delivery are at the risk and expense of Customer, including, without limitation, all of Company’s handling, reshipping, restocking and storage charges.  Interest at the rate of one and one-half percent (1 1/2%) per month (not to exceed the maximum interest allowable by law) shall be paid on the unpaid balance of any invoice not paid in full by Customer within thirty (30) days of the due date thereof.  Such interest shall be in addition to the purchase price.  Company, without notice, may change or withdraw extensions of credit at any time, in which event Company may require cash payments and/or collateral security for account balances.  Company may also refuse to sell to Customer until overdue accounts are paid in full.  If Customer fails to make any payment when due, in addition to all other sums payable hereunder, Customer shall pay Company the reasonable costs and expenses incurred by Company in connection with any actions taken to enforce collection of such unpaid amounts and to protect Company’s rights, whether by legal proceedings or otherwise, including, without limitation, reasonable attorneys’ fees, court costs and other expenses.

4.Shipment:  Specified shipment/delivery dates are approximate.  Unless otherwise agreed to in writing, all Deliverables will be shipped F.O.B. the Company’s plant.  Title and risk of loss shall pass to Customer upon delivery to a common carrier.  If freight must be prepaid, payment will be made for the account of Customer.  In the event Deliverables require extra or special packaging due to the nature of the Deliverables, the manner in which they will be transported or otherwise, Customer is responsible for the extra charges therefore.  Company shall not be liable for shipment delays, or any loss or damage to goods while in transit, and all claims therefore shall be made immediately by customer to the carrier.  Company reserves the right to deliver goods in installments unless expressly prohibited in the applicable Purchase Order.  Installment deliveries will be invoiced by Company at time of shipment unless otherwise agreed in writing by Company.  Delay in any installment delivery shall not relieve Customer of its obligation to accept all remaining installment deliveries pursuant to a purchase order.

5.Returns:  Deliverables may be returned by Customer only when authorized in writing by Company.  Deliverables must be returned properly packaged and shipped freight prepaid to Company.

6.Cancellation:  Orders may be cancelled by Customer only with the written consent of Company and upon Customer’s reimbursement for any and all expenses and other losses and damages incurred by Company as a result of such cancellation, including Company’s out of pocket costs, overhead and anticipated profit.

7.Permits, Etc.:  Customer will secure and provide, at its own expense, any and all necessary licenses, permits and inspections necessary to permit the lawful purchase and use of the Deliverables.

8.Changes:  Company reserves the right to make changes to the design or composition of Deliverables which in its judgment do not materially change the nature or quality of the Deliverables.  Changes in design or composition made at the request of Customer shall be at the expense of Customer and shall be paid for upon receipt of Company’s invoice.  Changes to design or composition of Deliverables made at the request of Customer shall be Customer’s risk and responsibility.

9.Retained Security Interest:  Until such time as the entire purchase price of the Deliverables has been paid, Customer hereby grants to Company a security interest in the Deliverables to secure the payment of same.  The rights and remedies of Company, as a secured party with respect to the Deliverables shall be governed by the Uniform Commercial Code, or equivalent statute(s) of the State in which the Deliverables are located.  Customer authorizes Company to execute and record on behalf of Customer such financing statements and other instruments as Company may deem necessary to perfect or protect its security interest in the Deliverables. 

10.Loss, Damage or Delay; Force Majeure:  Company shall not be liable for breach of any covenant or condition, loss, injury, delay, damages or other casualty due to causes beyond its reasonable control, such as labor disturbances, embargoes, riots, storms, fires, explosions, acts of God, war, acts of hostility, inability to obtain necessary labor or raw materials from usual suppliers, breakdown of manufacturing facility, or change in economic conditions.  Company shall not be liable for any damages or penalties whatsoever, whether direct or indirect, special, incidental or consequential, resulting from Company’s failure or the failure of its suppliers to perform or delay in performing.  Customer agrees that any loss, damage or delay shall not affect the validity of any purchase orders or these terms and conditions.

11.Limited Warranty; Disclaimers:  When shipped to Customer, Deliverables shall conform to Order Specifications and be free from faulty workmanship and defective materials; provided Company shall not be responsible for any defect in quality attributable to Customer’s specifying the materials to be used in, or the means or methods used by Company in producing any Deliverables.  Company shall not be liable if Customer fails to include all appropriate dimensional data in the Specifications, or Customer includes incorrect dimensions in the Specifications.  Company’s warranty immediately terminates in the event Customer alters a Deliverable in any fashion including the application of any process that may affect the performance of a Deliverable such as, by way of example only, heat treatment, plating, or grinding.  The foregoing warranty shall be limited to the ninety (90) day period commencing on the date of shipment; in each case provided that the Deliverables have been properly cared for by Customer, and provided that the Customer promptly notifies Company in writing of any warranty claim hereunder within said warranty period.  In the event  a Deliverable fails to meet the such warranty within the warranty period, Company’s sole obligation shall, in Company’s sole discretion, be to either correct the matter or replace the non-conforming Deliverable or return the Purchase Price of the Deliverable.  Company shall not be liable for any problems with any Deliverables resulting from any alterations to Deliverables made by the Customer or any other act or omission of the Customer or any third party.  The foregoing warranties provided by Company are the only warranties provided by Company with respect to Deliverables, and may be modified or amended only by a written instrument signed by an authorized officer of Company.  EXCEPT FOR THESE EXPRESS WARRANTIES, COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE OR DESIGN.  Any sample or literature exhibited to Customer was to illustrate the general type of goods and not an affirmation that the Deliverables will conform.  No employee or representative of Company has authority to bind Company to any representation, affirmation or warranty not specifically included herein.

12.Limitation of Liability:  Notwithstanding anything to the contrary contained herein, Company’s aggregate liability in connection with the sale of any Deliverables, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise), shall not exceed the amount actually paid by Customer to Company for such Deliverables.  .  All remedies of Customer shall be limited exclusively and in lieu of any and all other remedies to those contained in these terms and conditions, whether based upon breach of warranty, contract, negligence, strict liability or any other theory.

13.Confidential Information:  Technical information contained in plans, drawings, specifications, photographs and other documents disclosed or furnished by Company constitutes confidential and proprietary property of Company.  Customer, in the absence of express prior written permission of Company, shall hold all such confidential and proprietary information in confidence and may not sell or dispose of any portion thereof.

14.Default:  If Customer shall fail to pay all or any part of the sums due or to become due to Company, fail to keep and perform any of Customer’s obligations, become insolvent or become a party to any federal or state insolvency proceeding or receivership, or become a judgment debtor, any sum due or to become due may, at the option of Company, become immediately due and payable in full and concurrently, or in the alternative Company may at its option, in addition and without prejudice to its other lawful rights and remedies (i) defer further shipments of Deliverables until each default has been corrected to Company’s satisfaction, or (ii) terminate the Contract and exercise any other remedies available under applicable law.  Waiver of any default shall not be a waiver of any other subsequent default.  No course of conduct, nor any delay of Company in exercising any rights, nor Company’s acceptance of a payment from Customer with knowledge of an existing default or breach, shall waive any rights of Company or be deemed a modification of any order.

15.Indemnification:  The term “Loss” means every loss, liability, cost, damage and expense, including attorney’s fees and court costs. Customer shall indemnify and hold Company harmless from all Losses incurred in connection with any action or proceeding commenced against Company or to which Company is made a party, relating in any manner to the Deliverables, except only, subject to Section 12 above, to the extent it is determined that Company’s acts or omissions has directly caused any damages to the party or parties seeking recovery for the same.   

16.Notices:  Notices may be delivered by overnight courier or by United States mail, registered or certified mail, in each case with proof of delivery.  Notices to the Company shall be delivered to the Company’s headquarters, to the attention of its President, and notices to a Customer shall be delivered to the Customer at the Customer’s address set forth on its Purchase Order, or in each case to such other address as such party shall have notified the other party in writing.

17.Not Transferable:  No rights of a Customer are transferable or assignable by Customer without the prior written consent of Company.  Any purported assignment or transfer in violation of this Section 17 is void.  Paragraph captions are for convenience only and shall not be construed to define or limit these terms and conditions.

18.Amendments.  No amendment, change to, or modification of a Contract, or any of schedules or attachments thereto, shall be valid or binding unless the same shall be in writing and signed by the party or parties to be charged therewith.

19.Applicable Law; Dispute Resolution:  Each Contract shall be governed by the laws of the State of New York.  Each Contract shall be construed to be between merchants.  The exclusive venue for the resolution of all disputes shall be the state and federal courts located in the County of Erie, State of New York, regardless of where any order was placed or filled, the place of delivery of the goods or where any other act or performance occurred, and Customer consents to the personal jurisdiction of such courts.