The following are the terms and conditions (“Terms and Conditions”) for the sale of parts (“Parts”) by Fotofab (“Fotofab”) to Fotofab’s customers (“Customers).
1. ORDERS. Orders will be initiated by Customer issuing a purchase order (“order”) to Fotofab. Purchase Orders will identify the part numbers, descriptions, applicable prices and requested delivery dates. Orders are subject to Fotofab’s acceptance and to these Terms and Conditions. Cancellations will be may be subject to cancellation charges based upon the acquisition of raw materials and/or the percentage of work completed, including order receipt and set-up. All orders are considered NCNR (non-cancellable – non-returnable), however, under certain circumstances, Customer requests to reschedule may be accommodated but are subject to acceptance by Fotofab in its sole discretion. Orders may not be canceled or rescheduled after completion.
2. PRICES. Price quotes are firm for a period of sixty (60) days following the date of the quotation. Orders are billed at the prices quoted (in US dollars). If Customer does not purchase the quantity upon which quantity prices are based, Customer will pay the quoted amount for the actually purchased quantity and/or a cancellation fee. Unless otherwise quoted by Fotofab, all prices are FCA Seller’s Premises Incoterms 2010. Customer shall reimburse Fotofab for all costs and expenses, including attorneys’ fees and court costs, incurred in collecting any amounts due. Prices and availability of merchandise are subject to change without notice. Prices for any rescheduled deliveries may be increased by Fotofab in the event of an increase in Fotofab’s prices or costs or causes beyond Fotofab’s reasonable control.
3. TERMS OF PAYMENT. Fotofab standard payment terms are net thirty (30) days, from date of invoice, subject to credit approval. Fotofab, in its sole discretion, may at any time change the terms of Customer's credit or require advance payment, C.O.D. or payment by official bank check. If Fotofab reasonably believes that Customer's ability to make payments is impaired, Fotofab may cancel any order or remaining balance thereof, and Customer will remain liable to pay Fotofab for Parts already shipped. Customer will submit such financial information as Fotofab may reasonably require for determination of credit terms. Checks are accepted subject to collection and the date of collection will be deemed the date of payment. Any check received from Customer may be applied by Fotofab against any obligation owing by Customer to Fotofab under this or any other contract, regardless of any statement appearing on or referring to such check, without discharging Customer's liability for any additional amounts owing by Customer to Fotofab. The acceptance by Fotofab of such check will not constitute a waiver of Fotofab's right to pursue the collection of any remaining balance. Customer will pay the entire net amount of each invoice from Fotofab pursuant to the terms of such invoice without offset or deduction. Invoices not paid when due will bear interest to date of payment at the annual rate of eighteen (18%) percent or such lower rate as may be the maximum permitted by law. If Customer fails to make payment when due, Fotofab may pursue any legal or equitable remedies, in which event Fotofab will be entitled to reimbursement for costs of collection and reasonable attorneys' fees. There is a $25.00 service charge on all returned checks. Credit cards accepted are MasterCard, Visa, American Express and Discover.
4. SALES TAX. Fotofab is required by law to collect all Federal, State and Local sale, use, excise and similar taxes that may apply to a Customer’s shipment. These taxes are in addition to the purchase price of the Parts subject to an order. Since laws vary from state to state, please remit the correct tax for your area. If you are exempt from tax, an original signed tax exemption certificate must be sent to Fotofab. Without a valid signed tax exemption certificate on file at Fotofab, all applicable taxes will be charged to Customer.
5. DELIVERY AND TITLE. Fotofab will make reasonable efforts to initiate shipment and schedule delivery as close as possible to Customer's requested delivery date(s). Customer acknowledges that delivery dates provided by Fotofab are estimates only and that Fotofab will not be liable for failure to deliver on such dates. Delivery of goods to a carrier by Fotofab FCA Seller’s Premises Incoterms 2010, consigned to customer or its order, as customer may direct, shall be complete delivery to customer as well as transfer to customer of title, ownership, and possession of and to the goods. Customer assumes risk of loss, damage, or shortage in transit and shall be responsible for pursuing all claims with the carrier or carrier’s insurer. Customer shall provide Fotofab with written notice of any shortage, loss, or damage within fourteen (14) days of receipt of goods
6. LIMITED WARRANTY AND LIMITATION OF LIABILITIES. Fotofab warrants to Customer that the Parts purchased hereunder will be free from manufacturer’s defects and will be in conformance with the quotation, print and purchase order (in that order) for a period of 90 days. Fotofab makes no other warranty, express or implied, with respect to the Parts. IN PARTICULAR, FOTOFAB MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PARTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT. With respect to Parts which do not meet the quoted specifications, Fotofab’s liability is limited (at Fotofab’s election) to (1) refund of Customer’s purchase price for such Parts (without interest), (2) repair or rework of such Parts, or (3) replacement of such Parts; provided, however, that such Parts must be returned to Fotofab, within ninety (90) days from date of delivery, transportation charges prepaid. Further, no warranty will apply if the Parts have been subject to misuse, neglect, accident or modification, or has been soldered or altered in any way. If customer specifies methods and procedures to be followed, Fotofab will assume no responsibility for the correctness of such methods and procedures or the result when they are followed. CUSTOMER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND FOTOFAB SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT BEING LIMITED TO, LOSS OF PROFIT, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, BUSINESS INTERRUPTION COSTS, LOSS OF DATA, REMOVAL/REINSTALLATION COSTS, INJURY TO REPUTATION OR LOSS OF CUSTOMERS. CUSTOMER’S RECOVERY FROM FOTOFAB FOR ANY CLAIM SHALL NOT EXCEED CUSTOMER’S PURCHASE PRICE FOR THE PARTS IRRESPECTIVE OF THE NATURE OF THE CLAIM WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE.
7. High Risk Applications
Fotofab goods are not recommended for use in implantable medical or other high risk applications where a failure or malfunction of the component may directly cause injury or loss of life. The user of Fotofab goods in any such application assumes all risks and liability of such use and agrees to hold Fotofab harmless against all damages unless such application is authorized in writing by Fotofab. Please contact Fotofab prior to any intended use of Fotofab’s goods in an application that requires extremely high reliability.
8. PART RETURNS. Customer is deemed to have accepted the Parts unless written notice of rejection is received by Fotofab within ninety (90) days after delivery. Customer waives any right to reject or revoke acceptance thereafter. Authorization to return Parts must be obtained from Fotofab, which authorization may be granted by Fotofab in its sole discretion. If granted, Fotofab will issue Customer a return material authorization number (RMA No.). No return of Parts will be accepted without an RMA number. Returned Parts must be in original shipping cartons and must be complete with all packing materials. Fotofab is not responsible for returned Parts lost in transit. Fotofab strongly suggests Customer insures their package. If returned Parts are claimed to be defective, a complete written description of the nature of the defect must accompany all returned Parts. Part returned due to Customer error will be reshipped to Customer and rebilled. All items not eligible for return will be returned to Customer, transportation collect.
9. SHIPMENT DAMAGE. Part shipped from Fotofab’s distribution center is carefully packed and in compliance carrier requirements. All shipments should be fully unpacked and inspected immediately upon receipt. It is important to keep the shipping carton, packing material and parts intact for inspection by the carrier’s agent. Visible Loss or Damage. Any external evidence of loss or damage must be noted on the freight bill or carrier’s receipt and signed by the carrier’s agent. Failure to do this will result in the carrier refusing to honor the claim. Concealed Loss or Damage. If damage is not discovered until the shipment is unpacked, make a request for inspection by the carrier’s agent and file a claim with the carrier.
10. MANUFACTURE ONLY. Fotofab is the manufacturer of the Parts and makes no assurance of their suitability for the intended use.. They are designed by Customer or their affiliates. Fotofab is are not liable, in whole or in part, for any claim or damage arising from the use of any parts, and Customer agrees to fully indemnify, defend and hold harmless Fotofab from and against any and all claims, damages, loss, cost, expense or liability arising out of or in connection with the use or performance of such Parts.
11. INTELLECTUAL PROPERTY. The specific designs of parts fabricated by Fotofab and designed by Customer remain the property of Customer. During the process of fabricating Customer’s parts, Fotofab may develop new manufacturing methods and techniques. These manufacturing techniques will remain the sole property of Fotofab.
12. TOOLING. The tooling required for photo chemical machining will be paid for and becomes the property of Customer. Fotofab will store and maintain the tool(s) for a period of five (5) years of disuse, after which the tool will be destroyed without notice to Customer.
13. STATEMENTS AND ADVICE. If statements or advice, technical or otherwise, is offered or given to Customer, such statements or advice will be deemed to be given as an accommodation to Customer and without charge and Fotofab will have no responsibilities or liabilities whatsoever for the content or use of such statements or advice.
14.FORCE MAJEURE. Fotofab will not be liable for delays in delivery or for failure to perform its obligations due to causes beyond its reasonable control, including, but not limited to, material shortages, labor disputes, transportation delays, unforeseen circumstances, acts of God, acts or omissions of other parties, acts or omissions of civil or military authorities, Government priorities, fire, strikes, floods, severe weather conditions, computer interruptions, terrorism, epidemics, quarantine restrictions, riots, or war. Fotofab’s time for delivery or performance will be extended by the period of such delay or Fotofab may, at its option, cancel any order or remaining part thereof without liability by giving notice to Customer.
15. MANUFACTURING PROCESS CHANGES. Fotofab from time to time makes changes to its manufacturing process. Fotofab shall be under no obligation to notify Customer of such changes.
16. GENERAL. The Terms and Conditions may not be modified or cancelled without Fotofab’s written agreement. The sale of Parts hereunder will be governed by the Terms and Conditions, notwithstanding contrary or additional terms and conditions in any order purchase order, planning schedule, acknowledgment, confirmation or any other form or document issued by either party effecting the purchase and/or sale of Parts. No rights, duties, agreements or obligations hereunder may be assigned or transferred by Customer without the prior written consent of Fotofab. The obligations, rights, terms and conditions hereof will be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns. The waiver of any breach of any term, condition or covenant hereof or default under any provision hereof will not be deemed to constitute a waiver of any other term, condition, or covenant contained herein or of any subsequent breach or default of any kind or nature. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. The Terms and Conditions will be governed by and construed in accordance with the laws of the state of Illinois and the applicable laws of the United States. Customer will not directly or indirectly export, re-export, sell or transfer any Part to any country for which an export license or other governmental approval is required without first obtaining all licenses and other approvals. Fotofab hereby disclaims any interest in the trademarks, trade names, service marks, logos, copyrights, patents, domain names and other intellectual property of third parties.
17. EXPORT COMPLIANCE. Fotofab fully complies, and expects our customers to comply, with all U.S. export control regulations, including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR).”
As a Term of Sale, Fotofab requires its customers to use reasonable efforts to cooperate with, and assist, Fotofab in the correct identification and classification of items provided by the customer or manufactured to customer’s requirements, designs and/or specifications, which may be subject to U.S. export control regulations. If the customer cannot, or will not, make commonly reasonable efforts to assist Fotofab in the correct identification or classification of items relative to U.S. export control regulations, then the customer hereby indemnifies and holds harmless Fotofab from any resulting violation and/or penalties which may arise from the inaccurate classification of items and any resulting exports of such items which occurs.
Fotofab will not export controlled items without documented proof of a license or agreement from the appropriate U.S. governmental authority, and will follow all terms, conditions and provisos on such license or agreement as a condition of exporting and engaging in business with its customers.
Fotofab shall not be liable in any way to customers or third parties for delays caused by licensing issues to the extent such licensing issues arise out of customer’s failure to cooperate with and assist Fotofab in its efforts to accurately classify items provided by the customer or manufactured to the customer’s requirements, designs and/or specifications.
18. INTERNATIONAL ORDERS. Fotofab accepts orders from other countries. All orders of international origin are exported from the U.S. in accordance with Export Administration Regulations. All taxes, duties, insurance, shipping charges, and other international charges and fees are the responsibility of Customer. Information including price quotations, handling, documentation and shipping can be obtained by writing:
3758 Belmont Ave
Chicago, IL 60618
or by contacting the International Sales Team: