Effective January 1, 2025

Standard Terms and Conditions of Sale

INTRODUCTION

These Standard Terms and Conditions of Sales (Sales Terms) apply to the sale of products, parts, or materials to customers (buyers) through purchase agreement and is expressly limited to and conditioned on customer’s acceptance of these terms. FSi’s delivery of Goods, whether resulting from FSi’s quotation, proposal or otherwise, are subject to these Standard Terms and Conditions of Sale. Any terms and conditions or modifications to these Standard Terms and Conditions of Sale contained in any of Buyer’s documentation, acceptance, negotiable instrument, acknowledgement, purchase order, or any other means of correspondence are expressly rejected.

Acceptance by Buyer of any Goods delivered by FSi or payment to FSi for any Goods shall mean that Buyer agrees to these Standard Terms and Conditions of Sale. FSi’s failure to object to the provisions contained in any documentation or communication from Buyer will not affect the applicability of these Standard Terms and Conditions of Sale. Buyer’s failure to notify FSi of cancellation or objection within two (2) business days of receipt of these Sales Terms constitutes acceptance.

DEFINITIONS

The following definitions apply in these Standard Terms and Conditions of Sale:

“Agreement” means a purchase order (electronic or otherwise) agreed to by FSi), supply agreement, quotation, order acknowledgement by FSi, long term agreement, or any other agreement for the purchase and sale of Goods, subject to these Conditions.

“Affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, FSi. For purposes of this definition, the terms “control,” “controlled by” and “under common control with” mean the direct or indirect ownership of at least a majority of the stock or shares having the right to vote for the election of directors or possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such entity.

“Buyer” means the legal entity identified in the Agreement as the buying entity purchasing Goods pursuant to the Agreement.

“Conditions” means these Standard Terms and Conditions of Sale.

“Confidential Information” means all FSi’s confidential or proprietary information, whether disclosed in oral, written, or electronic format, which includes but is not limited to, trade secrets, data, financial information, technical information, business strategies, designs, specifications, tests, reports, sample products or materials, manufacturing information, or any other information which FSi provides to Buyer as well as all copies, notes, compilations, or other documents that contain or reflect any foregoing FSi’s confidential or proprietary information.

"Goods” means all physical goods, parts, products, Software, deliverables, items, technical information, or services provided by FSi to Buyer under the Agreement.

“Losses” means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and other professional costs and expenses).

“FSi” means the legal entity identified in the Agreement as the selling entity.

 “Software” shall mean any code or instructions that enable a computer or other electronic device to perform specific tasks or functions, including but not limited to firmware, software-as-a-service, applications, programs, interfaces, or similar products/offerings, including all updates, revisions, error corrections, and subsequent versions thereof, whether purchased separately or as part of a component or piece of hardware, and all related documentation.

GENERAL PROVISIONS

Taxes:

• Prices do not include any taxes (whether applicable now or in the future), including importation or customs taxes, applicable to Goods sold under any Agreement. Taxes will be added by FSi to the sales price where required to comply with applicable law and will be paid by Buyer unless Buyer provides FSi with a valid tax exemption certificate.
• If the Goods are subject to an international order which originates from the United States, the following provision shall apply: Prices do not include duties, fees, or social or welfare contributions or taxes levied by any government or other governmental authority outside of the United States and which FSi may be obligated to pay whether directly or indirectly, through withholding or otherwise. In the event FSi is required to pay any of the foregoing, or under its normal policy is required to reimburse any employee for the same, the price of the affected Goods will be increased by such amount.

Prices, Releases and Off-set:

• All prices are subject to change. Changes will be communicated in advance where feasible. The prices stated in any FSi quotation or order acknowledgement, including materials covered by this agreement shall be adjusted to, and the material shall be invoiced and remitted at FSi’s prices in effect at the time of actual shipment.
• Notwithstanding anything else in these Conditions, in the event of: currency exchange rate fluctuation; increase in the cost of components, raw materials or production; and/or any cost, tariff, duty or tax imposed on the Goods by a government or regulatory authority, which was not contemplated or not included by FSi, then FSi reserves the right at its sole discretion to pass any resulting additional costs to Buyer. 
• Buyer shall not be entitled to off-set any amount owed by FSi, for any reason, at any time, against any amount payable at any time by Buyer in connection with the applicable Agreement, without the prior express written permission of FSi.

Delays:

• FSi shall not be liable for any loss or expense, whether by way of contract or tort, (consequential or otherwise) incurred by Buyer if FSi fails to meet the specified estimated delivery schedule because of delays in production or any other delays.

Payment Terms:

• Our standard terms of payment shall be net thirty (30) days from date of invoice, unless agreed otherwise in writing between Buyer and FSi. FSi reserves the right to modify the amount of credit or terms of payment, or revoke Buyer’s credit at any time. If Goods are delivered in installments, Buyer shall pay separately for each installment.

Changes:

• Any changes or modifications to volume, materials, quality, warranty, shipping, delivery, timing, scope of work, specifications, etc. are individually and collectively defined herein as “Changes.” Any Changes requested by Buyer are deemed automatically rejected unless approved in writing by FSi, and FSi hereby reserves the right, under its sole discretion, to adjust the price and/or delivery schedule of such Goods affected by Buyer’s requested Changes. FSi reserves the right to adjust, suspend, decrease, or discontinue the manufacture and/or production of any Goods and implement Changes as a result thereof in its sole discretion.

Warranties and Remedies:

• THE FOLLOWING WARRANTIES ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES OR CONDITIONS WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FSI’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE FOLLOWING WARRANTIES SHALL BE (AT FSI’S OPTION) TO REPAIR OR REPLACE GOODS, OR REFUND THE PURCHASE PRICE OF GOODS PAID BY BUYER.
• FSi warrants (Warranty) to Buyer that:
  • Goods shall be free from defects in workmanship and materials;
  • Goods shall conform to FSi’s written specifications and drawings;
  • at the time of delivery, FSi has title to Goods free and clear of any and all liens and encumbrances.
• The Warranty shall be for twelve (12) months from the date of shipment, or such other period as may be required by operation of law but only (i) to the extent such other period applies to the Agreement and (ii) for the minimum period legally required (the “Warranty Period”). FSi gives no warranty as to samples, Goods or products that are used in HAST applications (High Accelerated Temperature/Humidity Stress Test), experimental or developmental goods, or goods not manufactured by FSi. For goods not manufactured by FSi, where permitted by FSi’s contract with its supplier, FSi shall assign to Buyer any rights FSi may have under any warranty of the supplier.
• The Warranty and Warranty Period shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or occur from FSi’s provision of, technical advice or service in connection with Buyer’s order of the Goods.
• If the Goods furnished by FSi fail to conform to the Warranty, FSi’s sole and exclusive liability shall be (at FSi’s option) to repair, replace or credit Buyer’s account for any Goods which are returned by Buyer during the applicable Warranty Period, provided that:
  • FSi is promptly notified in writing upon discovery by Buyer that such Goods failed to conform to the Warranty, with a detailed explanation of any alleged nonconformity;
  • Immediately after notifying FSi of such failure to conform, such Goods are returned, at Buyer’s expense to FSi, F.O.B. per FSi’s written instructions or as agreed in writing between the parties; and
  • FSi’s examination and testing of such Goods proves to FSi’s satisfaction that such alleged nonconformities actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair, improper testing or by any other means beyond the control of FSi. 
• If Goods are determined, in FSi’s sole discretion, to be non-compliant with the Warranty, FSi shall reimburse Buyer for reasonable transportation charges paid by Buyer for the return of those Goods. If FSi elects to repair or replace defective Goods, FSi shall have a commercially reasonable time to make the repairs or replace the Goods. If FSi, in its sole discretion, determines that the alleged nonconformity does not fall within the Warranty, Buyer shall reimburse FSi for all costs associated with FSi’s inspection of the Goods and Goods may be returned at Buyer’s expense if requested.

Indemnity:

• Buyer agrees to indemnify and hold FSi and its Affiliates, and each of FSi and its Affiliates’ agents, contractors, consultants, suppliers, licensors, employees, officers, directors, successors, permitted assigns and insurers harmless from all Losses, arising out of or in connection with:
  • the application of Goods to Buyer’s designs and/or products, or
  • FSi’s assistance in the application of Goods;
  • use of Goods by Buyer’s Buyers;
  • use of Goods for any applications outside FSi’s product specifications or which have not been agreed to in writing in advance between the parties;
  • any negligent acts or omissions of Buyer or its Affiliates, or each of Buyer’s and its Affiliates’ agents, contractors, consultants, Buyers, employees, officers, directors, successors or permitted assigns; or
  • Buyer’s breach of the Agreement or these Conditions.

Contingencies and Force Majeure:

• FSi shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control either of FSi or FSi’s suppliers, including, but not limited to, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot, terrorism, both foreign and domestic, or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, flood, storm, natural disaster or extreme adverse weather conditions, pandemic, epidemic, or act of God, acts or omissions of suppliers, shortage of labor, fuel, tooling, equipment or raw materials, or machinery or technical failure. FSi in its sole discretion may allocate production and deliveries among its customers.

Limitation of Liability:

• Despite anything in the Agreement to the contrary, FSI’s total liability for all claims, liabilities, costs, expenses, penalties, or damages arising under the Agreement will not exceed the amount of the purchase price FSI received for the goods related to the claims during the oneyear period before the breach occurred.
• FSI will not be liable under any circumstances for any special, indirect, punitive, collateral, exemplary, incidental, or consequential damages or losses of any kind. This includes loss of profits, revenue, data, opportunities, or any other economic losses, whether the claim arises from breach of contract, warranty, tort, indemnification, or any other cause—and even if FSI has been advised of the possibility of such damages. Under no circumstances shall FSi be liable for:
  • natural wear and tear;
  • consumables, including but not limited to wires and batteries, where the normal decrease of their performance over time and as a result of
  • the intended use by Buyer will not be considered a defect that is subject to the Warranty;
  • any damage caused by Goods or any damage caused by the use of Goods, if Buyer has failed to follow instructions from FSi (or the manufacturer’s instructions including use for non-approved applications outside the product specification) or fails to implement a Software upgrade recommended by FSi;
  • incorrect assembly, installation, repair or maintenance by Buyer or a third party commissioned by Buyer;
  • any damages which are attributed to abuse, misuse, incorrect or unusual use of Goods, or which are caused by Buyer’s or a third party’s products, services or interference;
  • Any property damage occurring while the Goods are in the custody of the Buyer or the Buyer’s agents;
  • any damage to products manufactured by Buyer, or of other products of which Buyer’s products form a part; or
  • any damage to commercial property. 

Intellectual Property:

• The sale of Goods to Buyer under the Agreement shall not grant, convey, or confer upon Buyer or any third party, a license or any right whether express or implied, to FSi-owned patents, trademarks, copyrights, know how, trade secrets, work product, proprietary information, or any other FSi-owned intellectual property. The Buyer shall not reverse engineer, decompile, or disassemble the Goods or any part thereof, or attempt to do so, except and only to the extent that such activity is expressly permitted by applicable law.
• FSi shall defend any suit or proceeding brought against Buyer which is based on a claim that any Goods directly infringe upon any U.S. patent duly issued and FSi shall pay all damages and costs finally awarded against Buyer in relation to such claim, provided that FSi is promptly informed and provided with a copy of each communication, notice or other action relating to the alleged infringement and is given sole authority over the defense of such claim, information and assistance (at FSi’s expense) necessary to defend or settle the suit or proceeding. FSi’s obligations under this Section shall not apply to any continued infringement occurring after Buyer has received notice of such suit or proceeding alleging the infringement, unless FSi has given written permission for such continuing infringement.
  • If any Goods manufactured and supplied by FSi to Buyer shall be held to infringe any U.S. patent duly issued, FSi will at its option and at its expense:
  • use its reasonable efforts to procure for Buyer the right to use such Goods free of any liability for patent infringement; or
  • use its reasonable efforts to replace such Goods with a non-infringing substitute otherwise complying substantially with all requirements of the Agreement; or
  • refund the purchase price and the transportation costs of such Goods.
• If the infringement by Buyer is alleged prior to completion of delivery of Goods, FSi may decline to make further shipments without being in breach. If FSi has not been prevented from selling said Goods to Buyer, FSi may agree at Buyer’s request to supply said Goods to Buyer and the patent indemnity obligation set out in this Section provided by FSi to Buyer, shall instead be provided by Buyer to FSi.
• FSi’s obligations pursuant shall not apply if the infringement arises out of or in connection with:
  • compliance with Buyer’s specification(s), designs, or instructions;
  • combination with, or in addition to, other products, equipment, Software or data not supplied by FSi;
  • modification of Goods after delivery by FSi that was made without
  • FSi’s written authorization;
  • use of Goods not in conformity with FSi’s recommended usage and instruction; or
  • use of a version of any Software or firmware in connection with Goods, other than the most recent version provided or made available by FSi.
• FSi may provide or develop Software for use with Goods, either incorporated into the Goods or supplied separately. FSi hereby grants Buyer and its Buyers a non-exclusive, nontransferrable and limited license to use the Software solely for the purpose of utilizing the Goods, and only in accordance with instructions or manuals provided by FSi. Buyer does not acquire any ownership interest or any other rights in the Software under this Agreement or Conditions, other than to use the Software in accordance with the license granted in this Agreement and/or Conditions. As between Buyer and FSi, Buyer acknowledges and agrees that FSi owns and shall retain all right, title, and interest in and to the Software, including all copyrights, trademarks, patents, and other intellectual property and proprietary rights in, to or relating to the Software, including but not limited all copies, modifications, enhancements and derivative works of the Software.
• Buyer agrees that Buyer will not take any action, or permit any third party to take any action, that might impair or otherwise interfere with FSi’s ownership rights in the Software. Buyer shall not:
  • copy the Software, except as expressly permitted by the Agreement;
  • modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software;
  • reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof, except as permitted by applicable law;
  • remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Software, including any copy;
  • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason, except as expressly permitted in the Agreement or these Conditions;
  • take any action that effects the security, integrity or functionality of the Software (including but not limited to permitting unauthorized access to the Software and/or introducing any virus, malware or harmful code into the Software); or
  • use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, data protection or privacy right, or other right of any person, or that violates any applicable law, rule or regulation.
• Buyer acknowledges and agrees that all property, copyright and other intellectual property rights in any work or tangible deliverable item arising from or created, produced or developed by FSi under or in the course of the Agreement, including without limitations all rights, title and interest in and to Goods, software and all documents, data drawings, specifications, articles sketches, reports, inventions, improvements, modifications, discoveries, tools, scripts and other items shall immediately upon creation or performance vest in and shall be and remain the sole and exclusive property of FSi and Buyer shall acquire no right title or interest in or to the same.
• If FSi provides Buyer with any sales, promotional or advertising material ("Advertising Material"), such Advertising Material shall remain the property of FSi. Buyer may use the Advertising Material only in accordance with the instructions of FSi and in relation to the sale of Goods, and Buyer may not authorize any third party to use the Advertising Material.
• Buyer may only advertise the Goods and use the Advertising Material and the trademarks of FSi for advertising the Goods if FSi has granted its prior express consent in writing. FSi may withdraw its consent at any time; in such case the entire advertising of Buyer must be ceased at Buyer's expense according to the instructions of FSi. Irrespective of FSi's consent, Buyer shall in any event remain responsible for ensuring that all advertising measures or advertisements fulfill the applicable statutory requirements, if any, and do not breach any intellectual property rights of third parties.
• This Section states the sole and exclusive liability of FSi for any patent infringement and is in lieu of all other warranties or conditions, express, implied or statutory.

Confidential Information:

• Buyer shall not disclose Confidential Information to any third parties unless Buyer receives FSi’s express written consent to the disclosure. Buyer shall use Confidential Information solely for purposes related to the applicable Agreement and for the mutual benefit of the parties.
• Buyer may only disclose Confidential Information to those employees, directors, or officers of Buyer who have a need to know the Confidential Information for purposes relating to the applicable Agreement. Such employees of Buyer shall execute an agreement that requires them to treat and protect Confidential Information in a manner that is consistent with this provision. Buyer shall be liable for any breach of Confidential Information.
• Obligations under this provision shall continue until such Confidential Information is publicly known and available through no act or omission of Buyer.
• Upon termination or expiration of any Agreement subject to these Conditions, or upon request of FSi, Buyer shall destroy, and certify such destruction in writing, or return all Confidential Information to FSi.

Non-Waiver of Default and Collection Rights:

• In the event of any default by Buyer, FSi may invoke any remedy provided by law or by the Conditions, and may decline to make further shipments. If FSi elects to continue to make shipments, FSi’s actions shall not constitute a waiver of any default by Buyer or in any way affect FSi’s legal remedies for any such default.
• In the event FSi resorts to a third party or to litigation in order to collect amounts owed to FSi, without prejudice to any other remedy available to FSi, Buyer agrees to pay costs of collection for amounts owed to FSi, including but not limited to, attorney’s fees, court costs, applicable storage charges or inventory carrying charges, and interest allowed by applicable law from the date the amount is due.

Governing Law and Dispute Resolution:

• Indiana law, excluding conflicts of laws principles, exclusively governs FSI’s sale of Products to Buyers. Except for FSI’s actions to collect unpaid amounts, all disputes relating to these Sales Terms, any Order, or the Products must follow this resolution process
  • good faith negotiations between authorized representatives within 90 days of a request;
  • if unresolved, non-binding mediation before a jointly selected mediator within 120 days at a mutually agreeable location; and
  • if still unresolved, litigation. Any litigation must be brought exclusively in the state or federal courts of St. Joseph or Elkhart counties, Indiana. Buyer consents to these courts' jurisdiction and agrees that service of process may be made by certified or registered mail.

Trade Compliance:

• Buyer must comply with all applicable Export/Import Laws regarding the purchase, export, import, use, or transfer of any Product. Products may not be exported, re-exported, transferred, or transshipped to (i) any Sanctioned Country except as permitted by law, or (ii) any destination requiring an export or import license without first obtaining it. Buyer certifies that neither it, any entity owning 50% or more of it, nor any end user is a Restricted Party or otherwise subject to sanctions under applicable laws. Nothing in this Agreement requires either party to act (or refrain from acting) or provide information if doing so would violate U.S. laws, including anti-boycott regulations.
• Definitions:
  • Export/Import Laws: U.S. laws governing export, import, reexport, sanctions, and trade controls, including but not limited to the EAR, ITAR, AECA, OFAC regulations, and relevant customs laws, as well as similar non-U.S. laws (unless inconsistent with U.S. law).
  • Restricted Party: Any person or entity listed on U.S. or (where not inconsistent with U.S. law) foreign government restricted party lists, including the SDN List and other sanctions lists.
  • Sanctioned Countries: Countries subject to U.S. economic sanctions and embargoes, including Cuba, Iran, North Korea, Sudan, and Syria (as updated). 

Assignment:

• The rights and obligations under these Conditions or under any applicable Agreement shall not be assigned or transferred by Buyer without the prior written consent of FSi. Any assignment or attempted assignment, whether by voluntary act or operation of law, shall be null and void, unless it is approved in writing by FSi. The rights and obligations under these Conditions or under any applicable Agreement may be assigned or transferred by FSi at any time without the prior written consent of Buyer.

Tools and Dies:

• All tools and dies, including without limitation, fixtures, gauges and assembly equipment manufactured or purchased by FSi under any applicable Agreement will be FSi’s property unless otherwise agreed to in writing by FSi.

Release of Information:

• Buyer shall in no event, without the prior written consent of FSi, publicly announce or otherwise disclose the existence of any Agreement or any relationship between Buyer and FSi, or release any publicity regarding the same. This provision shall survive the expiration, termination or cancellation of any applicable Agreement.