Terms & Conditions

Leading Edge Metals & Alloys, Inc. (“Seller”) and the party purchasing Products and/or materials (“Customer””) hereby agree to the following Terms and Conditions of Sale (“Terms and Conditions”):

1. Customer’s Acceptance of Terms and Conditions.
   (a) These Terms and Conditions of Sale constitute the final and entire understanding and agreement between Seller and Customer relating to the products and/or materials (“Products”) sold by Seller to Customer.

   (b) Customer’s acceptance of the Products is expressly conditioned on Customer’s acceptance of these Terms and Conditions. No different, inconsistent and/or additional terms and conditions submitted by Customer in acknowledging or accepting these Terms and Conditions or in issuing any purchase orders, releases, shipping instructions or other documents in connection with the Products shall modify or amend these Terms and Conditions or be valid or binding against Seller, unless specifically accepted by Seller in writing.

   (c) In the event of any conflict, discrepancy or inconsistency between these Terms and Conditions and the terms and conditioned contained in any document submitted by Customer, these Terms and Conditions shall govern even if Customer’s document expressly limits acceptance to Customer’s terms and conditions.(d) No course or pattern of dealing or conduct between Seller and Customer shall be relevant to determine the meaning or intent of these Terms and

2. Delivery/Inspection/Claims.
   

   (a) Seller will use reasonable efforts to deliver the Products in accordance with a mutually agreed-upon delivery Seller shall not be liable for any delays, loss or damage in transit or expedited delivery costs unless the delay is due solely to Seller’s gross negligence. Delivery dates are approximate and estimated and based on Seller’s prompt receipt of all necessary information from Customer. In the event that Customer reschedules deliveries or modifies quantities during an established firm order period, Customer shall compensate Seller for all costs associated with the change in schedule or modification, including, but not limited to, overtime and expedited freight costs.

   (b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Products to the location specified by Customer using Seller’s standard methods for packaging and shipping such Products. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s order.

   (c) All prices quoted by Seller are FOB Seller’s loading dock FOB Origin/Shipping Point unless otherwise noted on Seller’s invoice or any written quotation issued by Seller.(d) Customer shall inspect all Products and shipping documents upon(1) A claim for Products shortages must be submitted in writing to Seller within five (5) days of the date of delivery.
   (2) A claim for damaged or non-conforming Product(s) (i) must be submitted in writing to Seller within fifteen (15) working days of the date of delivery and (ii) Customer must return the damaged or non-conforming Products to Seller within twenty (20) working days from the date of

3. Prices and Payment.
   (a) Seller’s price is subject to Customer purchasing the entire quantity of Products identified in Seller’s If Customer purchases less than the entire quantity, Seller may, in its sole discretion, adjust the price of the Products.

   (b) Payment shall be due no later than 30 days after delivery unless otherwise agreed in writing by Seller. Any overdue payments shall bear interest at the rate of 1.5% per month or the maximum rate under applicable usury laws, whichever is less. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall not withhold payment of any amounts due and payable for any reason including any set-off of any claim or dispute with Seller.

4. Suspension of Delivery.
   In addition to all other remedies available under these Terms and Conditions, Seller shall be entitled to suspend the delivery of any Products if Customer fails to pay any amounts when due hereunder or otherwise breaches these Terms and Conditions.

5. Changes/Cancellation/Returns.
   (a) Any engineering or technical changes requested by Customer in connection with the Products are subject to approval by Seller taking into account the feasibility and practicality of the requested change. If Seller agrees to implement such requested change, then Customer shall be liable to Seller for any cost increase incurred as a result of such change.

   (b) Any purchase order issued by Customer may be canceled upon the earlier of two (2) business days after the order is placed or prior to Customer’s receipt of Seller’s acceptable of the purchase order. Cancellation beyond the time frames in the preceding sentence shall incur the greater of a $250 or 3% of the order total processing fee.

   (c) No Product shall be returned to Seller without prior written authorization of Seller. Product returns are subject to the following conditions: (1) all Products must be returned in their original packaging and in new condition, (2) only complete package quantities will be accepted, and (3) all returns must be made within thirty (30) days following delivery and are subject to a restocking fee of fifteen percent (15%) of the original purchase price.

6. Limited Warranty.
   (a) Seller warrants that its Products shall be free of defects in material and workmanship and meet the written specifications for the Products established by Seller and Customer. Subject to Sections 6(c) and (d) below, for a period of sixty (60) days after delivery, or such other period as is mutually agreed upon by Seller and Customer in writing (the “Warranty Period”), Seller agrees, at its discretion, to repair, replace or refund the cost of any Product or part thereof, which is proved to not meet the agreed upon written specifications or which is proved to be defective in material or workmanship under normal use.

   EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 6(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; or (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

   (b) Products manufactured using components that Seller has been directed to use by Customer that are manufactured by a directed third party (“Third Party Directed Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Directed Third Party Products are not covered by the warranty in Section 6(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY DIRECTED THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

   (c) Seller shall not be liable for a breach of the warranty set forth in Section 6(a) unless: (i) Customer gives written notice of the nonconformance, reasonably described, to Seller within ten (10) days of the time when Customer discovers or should have discovered the nonconformance; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Products and, if requested to do so by Seller, Customer returns such Products to Seller’s place of business at Seller’s cost for examination; and (iii) Seller reasonably verifies Customer’s claim that the Products do not conform to the specifications or are defective in material or workmanship.

   (d) Seller shall not be liable for a breach of the warranty set forth in Section 6(a) if: (i) Customer makes any further use of such Products after giving such notice; (ii) the nonconformance arises because Customer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Customer alters or repairs such Products without the prior written consent of Seller.(e) THE REMEDIES SET FORTH IN SECTION 6(a) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 6(a).

7. Limitation of Liability.IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE ASSOCIATED WITH THE PROUDCTS OR PERFORMANCE HEREUNDER, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Force Majeure.
   Seller shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances reasonably unforeseeable by Seller or beyond the reasonable control of Seller, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor shortages or disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, including without limitation raw materials on terms acceptable to Seller, shortage of materials or equipment, or telecommunication contingencies occur.

9. Confidentiality
   All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Customer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.

10. Notices
    Any notice will be sufficiently given when duly mailed, addressed to Seller or to Customer at their respective addresses appearing herein, or to such other address for either party as that party may designate by written notice.
11. Successors and Assigns.
    This Agreement shall bind the respective successors and assigns of the parties hereto, but none of Customer’s rights or obligations hereunder shall be assigned without Seller’s prior written consent.

12. Waiver.
    No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other right or remedy.

13. Intellectual Property.
    (a) Seller warrants, to the best of its knowledge, that the Products are free of rightful claims for infringement of any United States patent or trademark, provided, however, that this warranty shall not apply to claims for patent infringement to the extent that any Products are (i) manufactured to Customer’s specifications, (ii) used in combination with Products not purchased from Seller in a manner which infringes a patent covering the combination, or (iii) used in a manner not reasonably anticipated by Seller.

14. Indemnification.
    (a) Customer shall indemnify, defend, and hold harmless Seller and Seller’s owners, officers, directors, employees, agents, subsidiaries, affiliates, and contractors (collectively, the “Seller Indemnitees”) from and against any and all liabilities, claims, costs, fees, damages, losses, and expenses (including without limitation reasonable attorneys’ fees and court costs) (collectively, “Losses”) which a Seller Indemnitee may incur, suffer or threatened to a Seller Indemnitee as the result of (i) Customer’s failure to comply with these Terms and Conditions, (ii) Customer’s failure or omission to comply with the terms of this Agreement, including any actual or alleged infringement of any patents, copyrights or trademarks arising from the manufacture or sale of Products in accordance with patterns, designs, specifications, drawings, directions, technical information, or data furnished to Seller by Customer, or (iii) any modifications by Customer to the Products or the incorporation of the Product(s) into any other product.

15. Severability.
    If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

16. Choice of Law and Venue.(a) These Terms and Conditions shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.(b) Any claim or dispute arising out of or relating to these Terms and Conditions or the Products shall be resolved exclusively in the federal or state courts situated in Los Angeles County, California and Customer irrevocably consents to the jurisdiction of said courts. Prior to commencing any litigation, the parties shall endeavor to resolve any disputes through amicable commercial negotiations although neither party shall be precluded from seeking injunctive relief if circumstances warrant.

17. Assignment
    Neither party shall be entitled to assign its rights or obligations hereunder without the other party’s prior written consent. A corporate reorganization, which does not result in a change of control or beneficial owner, shall not be deemed an assignment.

18. Termination.
    (a) Either party may terminate this Agreement: (a) upon breach of any material term of this Agreement by the other party which is not remedied within 30 days after written notice of such breach; or (b) if a party becomes insolvent or makes an assignment for the benefit of creditors, or such party institutes any voluntary proceeding under bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law of any jurisdiction. In the event of a termination for any reason, Customer shall compensate Seller for all costs of raw materials, work-in-process or finished Products that have been acquired or manufactured on Customer’s behalf prior to the date of the termination.

Optional Provisions:

EXPORT RESTRICTION; FOREIGN CORRUPT PRACTICES ACT.

Customer acknowledges that the Products are subject to the U.S. Export Administration Regulations, as amended, and other applicable laws and regulations (collectively, “Regulations”), Customer agrees that any U.S. origin technical data provided by Seller with respect to the Products that Customer shall comply with the Regulations, and agrees that it shall not sell, transfer or deliver, directly or indirectly, any part or portion of the Products or related documentation supplied by Seller under this Agreement to any person or organization in violation of the Regulations.

Each party acknowledges that it will (i) not engage in any activity that would violate the U.S. Foreign Corrupt Practices Act, and (ii) indemnify and hold harmless the other party from and against any and all damages, liabilities, penalties and expenses, including attorney’s fees, arising out of claims, suits or allegations of a party’s failure to comply with this paragraph. The parties further agree that a failure of either party to comply with the requirements of this paragraph shall be a material breach of this Agreement.

WARRANTIES.
(a) Customer represents and warrants that any financial information provided to Seller will be true and correct in all material respect and shall fairly and accurately present the financial condition of Customer as of the date of such financial Seller agrees to treat such financial statements as confidential and shall not disclose such information to any third party.

(b) The parties agree to perform their obligations under these Terms and Conditions in accordance with applicable laws, regulations and rules.