Terms and Conditions

Applied Ceramics, Inc.’s Terms and Conditions

TERMS AND CONDITIONS OF SALE

1. TERMS AND CONDITIONS
Products and services (referred to herein as “Products”) furnished by Applied Ceramics, Inc. are sold only on the terms and conditions stated herein as well as any additional terms and conditions that may appear on the face hereof. In the case of a conflict between the terms and conditions stated herein and those appearing on the face hereof, the latter shall control. Notwithstanding any terms or conditions on Customer’s order, Applied Ceramics, Inc.’s performance of any contract is expressly made conditional on Customer’s agreement to Applied Ceramics, Inc.’s Terms and Conditions of Sale unless otherwise specifically agreed to in writing by Applied Ceramics, Inc.. In the absence of such agreement, commencement of performance and/or delivery shall be for Customer’s convenience only and shall not be deemed or construed to be acceptance of Customer’s terms and conditions, or any of them. If a contract is not earlier formed by mutual agreement in writing, acceptance of any Product shall be deemed acceptance of the terms and conditions stated herein. These Terms and Conditions of Sale may not be amended or any provision thereof waived in any way except by an instrument in writing signed by both parties.

2. ORDERS
All orders must be in writing and shall be subject to acceptance by Applied Ceramics, Inc..

3. QUOTATIONS AND PRICES
Applied Ceramics, Inc.’s prices and quotations are subject to the following:

1. All published prices are subject to change without notice.


2. Unless otherwise stated in writing by Applied Ceramics, Inc., all prices quoted shall be exclusive of transportation, insurance, taxes (including, without limitation, any sales, use or similar tax), license fees, customs fees, duties and other charges related thereto, and Customer shall report and pay any and all such shipping charges, premiums, taxes, fees, duties and other charges related thereto and shall hold Applied Ceramics, Inc. harmless there from, provided that, if Applied Ceramics, Inc., in its sole discretion, chooses to make any such payment, Customer shall reimburse Applied Ceramics, Inc. in full upon demand. If claiming a tax exemption, Customer must provide Applied Ceramics, Inc. with a valid tax exemption certificate.


3. Typographical or clerical errors are subject to correction.


4. Quotations are based on Applied Ceramics, Inc.’s Acceptance Quality Levels (“AQL”) commensurate with normal processing. If particular AQL values are required, Customer must state them along with its original request.


5. Prices quoted are for Products only and do not include technical data, proprietary rights of any kind, patent rights, tests other than Applied Ceramics, Inc.’s standard tests, or packaging other than Applied Ceramics, Inc.’s normal domestic commercial packaging, unless expressly agreed to in writing by Applied Ceramics, Inc.

4. TOOLING
A tooling charge may be applicable to cover partial tooling costs for new and revised parts. This will be a one-time service charge covering a portion of the preparatory operations necessary to manufacture Purchaser’s Products, but does not constitute payment for any resulting dies or special tools, which shall remain the property of Applied Ceramics, Inc.. Tooling will be reserved for exclusive use in serving Purchaser, and there will be no charges for maintenance unless specifically stated on the face hereof. When tooling has not been used for Purchaser for at least three years, Applied Ceramics, Inc. reserves the right to scrap it without notice.

5. TERMS OF PAYMENT
Unless otherwise agreed in writing, and unless credit is granted, payment shall be in U.S. Dollars and is due in full prior to the scheduled date of shipment. All payments for Products released and shipped on approved credit accounts shall be due in full 30 days from date of invoice therefore. Past due balances shall accrue interest at the rate of 1½% per month or the highest rate allowed by law, whichever is less. Partial shipments will be billed as made and payments therefore are subject to the above terms. Payment shall not be withheld for delay in delivery of required documentation unless a separate price is stated therefore and then only to the extent of the price stated for such undelivered documentation. Applied Ceramics, Inc. may cancel or delay work on or delivery of Products in the event Customer fails to make prompt payment therefore, in the event of an arrearage in Customer’s account with Applied Ceramics, Inc., or if, in Applied Ceramics, Inc.’s judgment, the financial condition of Customer at any time prior to delivery does not justify continuation of work on or shipment of the Products.

6. SECURITY AGREEMENT (Conditional Sale)
It is agreed by Customer and Applied Ceramics, Inc. that as to the Products which are the subject of this contract of sale and all accessions thereto and proceeds thereof, a purchase money security interest shall attach with Applied Ceramics, Inc. as secured party, and with respect to Products which are resold in any form by Customer, Applied Ceramics, Inc. shall be the assignee of any security interest which Customer retains or obtains in such Products until Customer has made payment in full therefore in accordance with the terms hereof. Customer shall be in default if it fails to make any payment as provided for herein or if bankruptcy, receivership or insolvency proceedings are instituted by or against Customer or if Customer makes any assignment for the benefit of creditors. Upon Customer’s default, Applied Ceramics, Inc. shall have all the rights and remedies of a secured creditor as well as those of a Applied Ceramics, Inc. of goods, under the Uniform Commercial Code and other applicable law, including but not limited to the right to take possession of the Products herein furnished. Applied Ceramics, Inc. may remedy any default and may waive any default without waiving the default remedied or without waiving any prior or subsequent default. Customer agrees to cooperate fully and assist Applied Ceramics, Inc. in perfecting and/or continuing Applied Ceramics, Inc.’s security interest and to execute such documents and accomplish such filings and/or recordings thereof as Applied Ceramics, Inc. may deem necessary for the protection of Applied Ceramics, Inc.’s interest in the Products herein furnished. The making of this contract of sale by Customer and Applied Ceramics, Inc. shall constitute their signing of this Security Agreement.

7. TRANSPORTATION AND RISK OF LOSS
Transportation will normally follow Customer’s shipping instructions, but Applied Ceramics, Inc. reserves the right to ship Products freight collect and to select the means of transportation and routing when Customer’s instructions are omitted or deemed unsuitable by Applied Ceramics, Inc.. Unless otherwise advised, Applied Ceramics, Inc. may insure the full value of the Products or declare full value thereof to the transportation company at the time of delivery and all freight and insurance costs shall be for Customer’s account. All Products are shipped FOB point of manufacturing, whether or not installation is provided by or under supervision of Applied Ceramics, Inc.. Title shall pass from Applied Ceramics, Inc. to Customer when Products are loaded on the transportation company’s vehicle at the location of Applied Ceramics, Inc.’s manufacturing plant from which the products are shipped. Subsequent confiscation or destruction of or damage to Products shall not release, reduce or in any way affect the liability of Customer therefore. Notwithstanding any defect or nonconformity, or any other matter, such risk of loss and/or damage shall remain in Customer until the Products are returned at Customer’s expense to such place as Applied Ceramics, Inc. may designate in writing. Customer, at its expense, shall fully insure Products against all loss and/or damage until Applied Ceramics, Inc. has been paid in full therefore, or the Products have been returned, for whatever reason to Applied Ceramics, Inc.. All Products must be inspected upon receipt and claims should be filed with the transportation company when there is evidence of shipping damage, either concealed or external.

8. PERFORMANCE
Applied Ceramics, Inc. will make all reasonable efforts to observe the dates it has indicated for delivery or other performance. However, Applied Ceramics, Inc. shall not be liable in any way because of any delay in performance hereunder due to acceptance of prior orders, technical difficulties, strike, lockout, riot, war, fire, act of God, accident, failure or breakdown of components necessary for completion of the Products, delays caused by any subcontractor, supplier or Customer, inability to obtain or substantial rises in the price of labor, materials or manufacturing facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation, or order, whether valid or invalid, of any governmental body or any instrumentality thereof, whether now existing or hereafter created, or due to any unforeseen circumstances or causes beyond Applied Ceramics, Inc.’s control. Provided such delay is neither material nor indefinite, Applied Ceramics, Inc.’s performance shall be deemed suspended during and extended for such time as it is so delayed, and thereafter Customer shall accept performance hereunder. Delay in performance shall not be considered material or indefinite unless it exceeds or is reasonably estimated by Applied Ceramics, Inc. to exceed a period of six (6) months. In addition, Applied Ceramics, Inc.’s inventories and current production must be allocated so as to comply with applicable Government regulations. In the absence of such regulations, Applied Ceramics, Inc. reserves the right, in its sole discretion, to allocate inventories and current production and substitute suitable materials when, in its opinion, such allocation or substitution is necessary due to such circumstances or causes. In the interest of conservation of scarce materials, and of efficient utilization of high value parts and components, the Products may contain remanufactured parts and components. Such parts and components are covered by the same warranty and are subject to the same high standards of quality control applied to other parts and components. No penalty clause of any kind shall be effective. As used herein “performance” shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing and warranty repair or replacement, as applicable.

9. ACCEPTANCE OF PRODUCTS
The furnishing by Applied Ceramics, Inc. of a Product to Customer shall constitute acceptance of that Product by Customer unless notice of defect or nonconformity is received by Applied Ceramics, Inc. within thirty (30) days of receipt of the Product at Customer’s designated receiving address, provided that, for Products for which Applied Ceramics, Inc. agrees in writing to perform acceptance testing after installation, the completion of Applied Ceramics, Inc.’s applicable acceptance tests, or execution of Applied Ceramics, Inc.’s acceptance form by Customer, shall constitute acceptance of that Product by Customer.

10. ASSIGNMENT AND TERMINATION
Any assignment by Customer of any contract hereunder without the express written consent of Applied Ceramics, Inc. is void. No order may be terminated by Customer except by mutual agreement in writing. Terminations by mutual agreement are subject to the following conditions: (1) Customer will pay, at applicable contract prices, for all products which are completely manufactured and allocable to Customer at the time of Applied Ceramics, Inc.’s receipt of notice of termination; (2) Customer will pay all costs, direct and indirect, which have been incurred by Applied Ceramics, Inc. with regard to products which have not been completely manufactured at the time of Applied Ceramics, Inc.’s receipt of notice of termination, plus a pro rata portion of normal profit on the contract; and (3) Customer will pay a termination charge on all other Products affected by the termination. Applied Ceramics, Inc.’s normal accounting practices shall be used to determine costs and other charges. To reduce termination charges, Applied Ceramics, Inc. will divert completed parts, material or work-in-progress from terminated contracts to other Customers whenever, in Applied Ceramics, Inc.’s sole discretion, it is practicable to do so.

11. WARRANTY
Applied Ceramics, Inc. customarily warrants that each Product sold by it will conform to the applicable specifications at the time of delivery. Applied Ceramics, Inc.’s obligation under said warranty continues for a period of time and under such conditions as specified in Applied Ceramics, Inc.’s warranty for the individual Product. If no period of time is stated, then such warranty is limited to thirty (30) days. Unless otherwise specified on the face hereof or otherwise mutually agreed in writing, Applied Ceramics, Inc.’s applicable standard warranties are incorporated herein by this reference. Repair, or at Applied Ceramics, Inc.’s option, replacement of defective parts shall be the sole and exclusive remedy under warranty, provided that Applied Ceramics, Inc. may, as an alternative, elect to refund an equitable portion of the purchase price of the Product. The warranty stated herein constitutes the exclusive warranty provided by Applied Ceramics, Inc. with respect to all products and is expressly given in lieu of and excludes all other express or implied warranties , including but not limited to warranties of merchantability and of fitness for particular purpose, use or application, and all other obligations or liabilities on the part of Applied Ceramics, Inc., unless such other warranties, obligations or liabilities are expressly agreed to in writing by Applied Ceramics, Inc. Some experimental, developmental or special application products, or products with a life test requirement, are sold without warranty. In such case, Applied Ceramics, Inc. warrants that the products meet applicable specifications when shipped by Applied Ceramics, Inc. but Applied Ceramics, Inc. shall have no other or further responsibility whatsoever..

12. WARRANTY REPLACEMENT AND ADJUSTMENT
All claims under warranty must be made promptly after occurrence of circumstances giving rise thereto and must be received within the applicable warranty period by Applied Ceramics, Inc. or its authorized representative. Such claims must include the Product type and serial numbers, if any, Customer’s purchase order number, and a full description of the circumstances giving rise to the claim. Before any Products are returned for repair and/or adjustment, a Return Material Authorization (“RMA”) number must be obtained from Applied Ceramics, Inc. or its authorized representative for the return and instructions as to how and where these Products should be shipped must be obtained. Any Product returned to Applied Ceramics, Inc. for examination shall be sent prepaid via the means of transportation indicated as acceptable by Applied Ceramics, Inc. Applied Ceramics, Inc. reserves the right to reject any warranty claim not promptly reported and any warranty claim on any item that has been altered or has been shipped by unacceptable means of transportation. When any Product is returned for examination and inspection, or for any other reason, Customer shall be responsible for all damage resulting from improper packing or handling, and for loss in transit, notwithstanding any defect or non-conformity in the Product. In all cases Applied Ceramics, Inc. has sole responsibility for determining the cause and nature of failure and Applied Ceramics, Inc.’s determination with regard thereto shall be final.
If it is found that the Product has been returned without cause and is still serviceable, Customer will be notified and the Product returned at Customer’s expense. In addition, a charge for testing and examination may, in Applied Ceramics, Inc.’s sole discretion, be made on Products so returned.

13. DAMAGES AND LIABILITY
Applied Ceramics, Inc.’s aggregate liability in damages or otherwise shall not exceed the payment, if any received by Applied Ceramics, Inc. for the unit or product or service furnished or to be furnished, as the case may be, which is the subject of claim or dispute. If no event shall Applied Ceramics, Inc. be liable for loss of use, anticipates profits or any other incidental, consequential, or special damages, howsoever caused, regardless of whether it has been advised of the possibility of such damages.

14. DISPUTES, GOVERNING LAW
All disputes under any contract concerning Products not otherwise resolved between Applied Ceramics, Inc. and Customer shall be resolved in a court of competent jurisdiction for the location of Applied Ceramics, Inc.’s manufacturing plant from which the products are shipped, and in no other place, provided that in Applied Ceramics, Inc.’s sole discretion such action may be heard in some other place designated by Applied Ceramics, Inc. (if necessary to acquire jurisdiction over third persons), so that the dispute can be resolved in one action. Customer hereby consents to the jurisdiction of such court or courts and agrees to appear in any such action upon written notice thereof. No action, regardless of form, arising out of or in any way connected with the Products furnished by Applied Ceramics, Inc. may be brought by Customer more than one (1) year after the cause of action has accrued. If any part, provision or clause of the terms and conditions of sale or the application thereof to any person or circumstances is held invalid, void or unenforceable, such holding shall not affect and shall leave valid all other parts, provisions, clauses or applications of the terms and conditions remaining and to this end the terms and conditions hereof shall be treated as severable. All contracts for the sale of Products shall be construed under and governed by the law of the location of Applied Ceramics, Inc.’s manufacturing plant from which the Products are shipped.

15. EXPORT
Unless an appropriate license, exemption, or similar authorization has been duly obtained to Applied Ceramics, Inc.’s satisfaction, Customer shall not, nor shall Customer authorize or permit its employees, distributors, customers, and/or agents to, export or re-export any of the Products (including any information relating thereto) to any country specified as a prohibited destination in applicable U.S. laws and regulations, including the Regulations of the U.S. Department of Commerce and/or other government agencies. Customer agrees to defend, indemnify, and hold harmless Applied Ceramics, Inc. from and against any claim, loss, liability, expense, or damage (including liens or legal fees) incurred by Applied Ceramics, Inc. with respect to any of Customer’s export or re export activities contrary to the foregoing instructions.

16. PROPRIETARY RIGHTS
Unless expressly agreed to in writing by Applied Ceramics, Inc., the sale of Products by Applied Ceramics, Inc. pursuant hereto does not convey to Customer any rights in any of Applied Ceramics, Inc.’s patents, copyrights, trademarks or other intellectual property rights of Applied Ceramics, Inc., all of which shall be and remain the sole property of Applied Ceramics, Inc.. Customer shall not challenge or take any position inconsistent with Applied Ceramics, Inc.’s ownership of such rights.