CONTROLLING TERMS AND CONDITIONS
All quotations made and orders received are subject to these terms and conditions which constitute the entire agreement between Photon etc. Inc. a corporation with offices at 222-5795 De Gaspé Ave, Montreal, Qc, H2S 2X3, Canada (“PHOTON”) and its Customers (“CUSTOMER”). These terms and conditions take precedence over prior terms and conditions whenever submitted by either party, and no alterations shall apply unless confirmed in writing by an authorized representative of both parties. No form of acceptance except PHOTON’s written sales acknowledgment sent to the CUSTOMER or PHOTON’s commencement of performance shall constitute a valid acceptance of the CUSTOMER’s order, the CUSTOMER shall be deemed to have assented to the terms hereof, whether or not previously received, upon accepting delivery of any Product shipped by PHOTON. If the accompanying PHOTON quotation is deemed an offer; acceptance by CUSTOMER of such offer is expressly limited to the terms hereof. Issuance by CUSTOMER of a purchase order shall be deemed an acceptance of these terms and conditions. Failure by CUSTOMER to specifically object to these terms and conditions in writing within ten (10) days upon receipt shall constitute an acceptance hereof.
“PRODUCT” shall mean any products, including all parts, spare parts and components or services identified on any PHOTON proposal, current price list, sales invoice or any document which refers to this agreement. Alterations to any PRODUCT, which PHOTON considers necessary to comply with specifications, changed safety standards or governmental regulations, to make a PRODUCT non-infringing with respect to any intellectual property or other proprietary interest, or to otherwise improve a PRODUCT may be made at any time by PHOTON without prior notice to, or consent of, the CUSTOMER and such altered PRODUCT shall be deemed fully conforming.
PRICES, PAYMENT TERMS, AND CHARGES
Prices quoted are in USD or other local currency and are valid for THIRTY (30) days from the date of quotation and exclusive of Taxes. All sales are final. For PRODUCT and except specified otherwise in the quotations by PHOTON, payment terms shall be 50% with Purchase Order and the remaining 50% net thirty (NET30) days from the date of the shipment. PHOTON reserves the right to require alternative payment terms including, without limitation, a letter of credit or 100% payment before delivery. The CUSTOMER grants PHOTON a security interest in the PRODUCT (excluding services) purchased under this Agreement to secure payment for that PRODUCT purchased. There is no set-off right for the CUSTOMER. Any tax or other charges which PHOTON is liable to collect on behalf of any governmental authority ("Taxes") as a result of the sale, use or delivery of the PRODUCT, including without limitation, duties, value added and withholding taxes, is the responsibility of the CUSTOMER, and if paid by PHOTON shall be charged to CUSTOMER as a separate item on the invoice, to the extent possible. Freight, duty, transaction fees or bank special fees, and any taxes or charges incurred by PHOTON will be charged to the CUSTOMER as a separate item(s) on the invoice. Full payment due per above terms should be sent via bank transfer to Photon etc. Inc, Bank of Montreal, Westmount Main Branch 1299, Greene Avenue, Westmount, QC, Canada, H3Z 2A6, Account: 4786-900, Branch: 01661, Institution: 001, SWIFT Code: BOFMCAM2.
Time of delivery shall not be of the essence, however, PHOTON will make every effort to expedite delivery in accordance with the quotation. If there is no prepayment required dates of delivery are determined from the date of PHOTON acceptance of any purchase order. In the case of a prepayment required, dates of delivery shall be determined upon reception of the first payment. PHOTON shall not be liable for failure or delay in shipping products under this Quotation for any reason whatsoever. PHOTON shall have no liability for any loss whatsoever suffered by the CUSTOMER as a result of late delivery.
TITLE AND RISK OF LOSS
All PRODUCTS will be delivered EXW (ExWorks) Montreal (INCOTERMS 2010). Title to PRODUCT (excluding any Non-Recurring Engineering work and Software, which shall at all times remain with PHOTON) transfers from PHOTON to the CUSTOMER upon shipment. PHOTON will select the shipper unless instructed in writing otherwise by the CUSTOMER. The shipper is not deemed to be an agent of CUSTOMER or PHOTON and PHOTON is not liable for any damages, or for failure to give notice of any delay. Each PRODUCT shall be deemed accepted by the CUSTOMER upon receipt. Any queries regarding short deliveries or incorrect charges should be made within five (5) days of receipt.
Where payment is not received by the due date, without prejudice to PHOTON’s other rights and remedies: i) PHOTON reserves the right to suspend all deliveries of PRODUCTS to the CUSTOMER; and ii) the CUSTOMER shall pay interest on the amount of any late payment at a rate of 1.5% per month (18% annual on a monthly basis) of the unpaid amount.
Purchase orders resulting from quotations by PHOTON shall not be cancelled, terminated, or suspended without prior written agreement from PHOTON which, if given, shall be upon terms that will compensate PHOTON for any loss or damage therefrom including, but not limited to, any work in process or services performed, the price of the PRODUCT shipped to, manufactured for, or held separately for the CUSTOMER, incurred costs, and a reasonable allocation of general and administrative expenses relating to the PRODUCT. Cancellation penalty shall be calculated on the above terms but will be a minimum of 15% of order value for standard PRODUCT.
PHOTON warrants that the PRODUCTS at the time of delivery shall comply with all relevant statutory requirements and regulations and nothing in these terms and conditions shall affect or limit any conditions or terms implied by statute, or affect PHOTON’s liability for death or personal injury. Unless otherwise specified in PHOTON’s quotation or sales acknowledgment, PRODUCTS are guaranteed for twelve (12) months from the date of shipment. Dispersive gratings, optical filters and mirrors are warranted for a period of ninety (90) days from the date of shipment. PHOTON makes no warranty with regard to external components and unspecified usage. PHOTON does not warrant that the PRODUCTS are error-free or will accomplish any particular result.
Within one year from the date of shipment, except as otherwise expressly stated in PHOTON quotation or sales acknowledgment, PHOTON will repair, replace, or issue a credit note for, at PHOTON's sole option, any material that contains a manufacturing defect for which a notification is given in accordance with PHOTON’s warranty procedures. PHOTON shall not be liable for any indirect, special, consequential or incidental damages, or loss of profit, use, production, raw materials, or end product or for any other claim for damages arising out of the purchase, delivery, installation (whether the installation is performed by one of our employees or not), or removal of the PRODUCT, whether claimed in contract, warranty, tort (including negligence) or otherwise. EXCEPT FOR THE WARRANTIES STATED ABOVE, PHOTON DISCLAIMS ANY WARRANTY, CONDITION OR REPRESENTATION EXPRESSED, IMPLIED, ORAL OR STATUTORY PROVIDED TO THE CUSTOMER OR ANY THIRD PARTY. IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF PHOTON EXCEED THE AMOUNT PAID TO PHOTON FOR THE PRODUCTS AND/OR SERVICES DELIVERED. THIS LIMITATION ON LIABILITY SHALL NOT APPLY TO CLAIMS ARISING OUT OF (1) THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF PHOTON; OR (2) INDEMNIFICATION OBLIGATIONS AS DEFINED BELOW.
PROTOTYPES AND EXPERIMENTAL PRODUCTS
All PRODUCTS, which are experimental PRODUCTS, prototypes, or used in field trials as identified by PHOTON in the Quotation are not warranted whatsoever.
PHOTON will only accept PRODUCT returned in accordance with PHOTON warranty procedures. The CUSTOMER shall contact PHOTON and obtain shipping instructions and a Return Material Authorisation (RMA) number prior to returning any PRODUCT which then may be returned to PHOTON fully insured at the CUSTOMER’s expense. CUSTOMER must ship the PRODUCT back in its original condition and in the original or equivalent packaging. PHOTON shall not be responsible for any damage occurring in transit. CUSTOMER bears all risk of loss or damage to the returned PRODUCT until delivery at PHOTON’s designed facility. Any PRODUCT which is returned to PHOTON but which is found to be in full working order may be assessed PHOTON’s standard repair charges applicable at the time. PRODUCT returned without a RMA number will not be accepted by PHOTON and will be returned at the charge of the CUSTOMER. Repairs made on PRODUCTS or components replaced under warranty are warranted for the remaining unexpired duration of the original Warranty Period for such PRODUCTS or components. For PRODUCTS returned for repair that are not covered under warranty, PHOTON’s standard repair charges shall be applicable in addition to all shipping expenses. Unless otherwise stated in PHOTON’s repair quotation, any such out-of-warranty repairs are warranted for ninety (90) days from the date of shipment of the repaired Product. The foregoing warranty does not apply to PRODUCTS which are (a) repaired, modified or altered by any party other than Photon; (b) used in conjunction with equipment not provided or authorized by Photon; (c) subjected to unusual physical, thermal, electrical or optical stress, improper installation, misuse, abuse, tampering, accident, contamination, or negligence in use, storage, transportation or handling (including any failure to maintain appropriate environmental conditions as specified by PHOTON for a particular PRODUCT); or (d) considered a consumable item or an item requiring repair or replacement due to normal wear and tear. The foregoing warranty will also not apply if the “Warranty Void If Seal Broken” seal located on any PRODUCT has been removed, broken or otherwise tampered with. The foregoing warranty does not apply to any Customer Furnished Material (as defined below) incorporated into the PRODUCTS. The foregoing warranty does not apply to any PRODUCTS that are marketed and sold by Photon for a third party manufacturer and under such third party manufacturer’s name, except to the extent of any warranty that is expressly provided to Photon by such third party manufacturer and is assignable by PHOTON to its CUSTOMERs. On-site warranty repair is not covered under the foregoing warranty unless otherwise stated in Photon’s quotation. Warranties made by any distributors of Photon which are inconsistent or in conflict with the terms of this warranty shall not be binding on PHOTON unless reduced to writing and approved by an expressly authorized officer of Photon.
For PRODUCTS containing software or firmware components and applications developed or licensed by PHOTON, PHOTON retains ownership and grants the CUSTOMER a royalty-free perpetual, non-exclusive license to use the software with the PRODUCT. The CUSTOMER shall have no right to sublicense the software, and shall not redistribute the software independent of the PRODUCT without prior written permission of PHOTON. Except as expressly set forth herein, PHOTON shall have no obligations to CUSTOMER whatsoever with regard to the Software. Without limiting the generality of foregoing, PHOTON has no obligation to develop updates or modifications to the Software or develop or provide Software development tools to Buyer.
CUSTOMER agrees not to: i) copy, replicate or reverse engineer the PRODUCTS, use the PRODUCTS as tools or molds, ii) use the PRODUCTS in the fields of (a) ophthalmology, (b) the sorting of plastics and fibrous materials, such as paper and cardboard in the field of recyclable materials collection and waste management, or to permit any third party from doing any of what is prohibited pursuant to this section. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY ARE ENTERING INTO THIS AGREEMENT ON THE UNDERSTANDING THAT THE PRICE FOR THE PRODUCTS HAS BEEN SET TO REFLECT THE FACT THAT BUYER HAS UNDERTAKEN TO REFRAIN FROM PARTAKING IN THE ACTIVITIES PROHIBITED PURSUANT TO THIS SECTION, FAILING WHICH THE PRICES FOR THE PRODUCTS WOULD HAVE BEEN SUBSTANTIALLY HIGHER.
PHOTON’s sale and delivery of the PRODUCTS are subject to compliance with all applicable global export laws and regulations, including but not limited to the Wassenaar Arrangement and any regulations implemented thereunder, the Canadian Export Control List, and the U.S. International Traffic in Arms Regulations (ITAR), including any requirement for PHOTON to apply for an export license, which may result in a delay in delivery and/or additional costs or, if denied by the applicable government authority, may prevent the sale and delivery of the PRODUCTS. The quotation lead time for delivery of the PRODUCTS may be impacted by the length of time required to obtain an export license, if applicable. PHOTON will not have any liability to CUSTOMER for any failure or delay in delivery resulting from PHOTON’s compliance with licensing or other requirements under the applicable Export Regulations. The CUSTOMER shall obtain all licenses, permits, and approvals required by any applicable government and shall comply with all applicable laws, rules, policies and procedures of the applicable government and relevant authorities. The CUSTOMER will indemnify PHOTON against any violation or alleged violation by the CUSTOMER of such laws, rules, policies or procedures. The CUSTOMER shall not transmit, export or re-export, directly or indirectly, separately or as part of any system, the PRODUCT or any technical data (including processes and services) received from PHOTON, without first obtaining any license required by the applicable government.
PHOTON owns or licenses intellectual property, including certain patents or patent applications. All rights and title to PHOTON patents, trademarks or any other proprietary or intellectual property of PHOTON that relate to the items included in the Quotation remain the title of PHOTON. However, modification of a PRODUCT, a combination of a PRODUCT with another product, or use of a PRODUCT in a specific application may require licensing by the PRODUCT user of the patents of others. Obtaining such licenses, and any due diligence required to identify applicable patents, is the responsibility of the CUSTOMER or user, and PHOTON is not liable in any way to any party for any infringement of patents relating to the party’s modification of a PRODUCT, combination of a PRODUCT with another product, or the use of a PRODUCT for a specific procedure or process.
Neither party will be liable for failure to perform any of its obligations pursuant to these terms and conditions if such failure results from actions beyond that party's reasonable control or unforeseen events including but not limited to acts of God, supply shortages, labour disputes, riots, fire, war or other such occurrences.
CUSTOMER FURNISHED MATERIAL
In the event that CUSTOMER, with PHOTON’s prior approval, provides products, raw materials, fixtures or tools (collectively, the “Customer Furnished Material” or “CFM”) to PHOTON for incorporation into, or use in the manufacture of, the PRODUCTS, CUSTOMER shall retain title to, and shall continue to bear all risk of loss or damage to, such CFM. CFM IS PROVIDED BY CUSTOMER AT CUSTOMER’S RISK. IN NO EVENT SHALL PHOTON BE LIABLE FOR ANY LOSS OR DAMAGE TO SUCH CFM RESULTING FROM ANY CAUSE WHILE IN PHOTON’S POSSESSION. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR INSURING THE CFM AGAINST ANY SUCH LOSS OR DAMAGE. CFM certification and quality are the responsibility of CUSTOMER. All CFM is subject to inspection by PHOTON upon receipt, and PHOTON reserves the right to refuse the CFM and/or requote the order based upon such inspection. CFM is not guaranteed to yield CUSTOMER’s total order quantity. If material shortages occur due to yield, CUSTOMER shall, at its option, either supply additional CFM to complete the order or close the order short. Any CFM not used by PHOTON will be returned to CUSTOMER, at CUSTOMER’s risk and expense.
In the course of their relationship, the Parties may disclose to each other written or electronically communicated or stored information under this Agreement which they deem confidential, including, without limitation, pricing and sales information and CUSTOMER names ("Confidential Information"). Accordingly, the Parties hereby agree as follows: (A) each Party shall not disclose Confidential Information to any other person, firm or corporation (including, without limitation, affiliated corporations and separate business units) except as provided herein, and shall use the same degree of care to avoid publication or dissemination of such Confidential Information as they employ with respect to their own information which they do not desire to have published or disseminated. All Confidential Information shall be retained by each Party in a secure place with access limited to only such of its employees or agents (including consultants, accountants, and attorneys) who need to know such information for purposes of this Agreement and each of the foregoing persons shall be informed of the existence and terms of this Section and each Party hereby acknowledges and agrees that it shall be liable to the other for any breach by its employees or agents; (B) at the conclusion of this relationship or upon demand by the other Party, all Confidential Information, including marketing documents, other written notes, diagrams, memoranda, or notes taken by each Party regarding Confidential Information, shall be returned to the other Party or, at the request of the other Party, destroyed. The term “Confidential Information” shall not include, and each Party shall have no obligation with respect to, any information which: (i) is already known to it; or (ii) is or becomes publicly known through no wrongful act of it; or (iii) is rightfully received from a third party without restriction and without breach of this Agreement; or (iv) is independently developed by it; or (v) is approved for release by written authorization of the other Party. The Parties may disclose any Confidential Information received hereunder pursuant to any applicable law, regulation or court order, provided that such disclosure will be limited to the minimum acceptable level of disclosure and that the Party required to disclose such information will immediately notify the other Party of the imminent disclosure and reasonably cooperate to minimize or prevent such disclosure to the maximum extent allowed under applicable law, regulation or court order. Each Party acknowledges that disclosure or improper use of the Confidential Information would cause the other Party immediate and irreparable harm. Without limiting the following, each Party agrees that the other Party will be entitled to equitable relief in addition to any other remedies available to it.
No Party may assign any of its rights or delegate any performance under this Agreement, except to any successor to, or purchaser of, substantially all of the assets or operations of its business to which this Agreement pertains, or with the express written consent of the non-assigning Party. If a Party otherwise assigns its rights under this Agreement without the non-assigning Party’s prior written consent, the non-assigning Party is entitled to terminate this Agreement. If the non-assigning Party terminates this Agreement, the termination is effective as of the assignment’s occurrence. Any such termination is without prejudice to the non-assigning Party’s claim for damages. This agreement shall bind and inure to the benefit of any successors in title or permitted assignees of the Parties.
The Parties expressly agree that this Agreement and the enforcement of the rights and obligations hereunder shall be governed by and construed in accordance with the laws of the Province of Quebec, Canada, without regard to its provisions concerning the applicability of the laws of other jurisdictions. The Parties hereby agree that any and all claims arising out of, relating to or in connection with this Agreement, or the relationship between the Parties hereto, shall be subject to the exclusive jurisdiction of and venue in the Court of Quebec, and each Party hereby consents to the exclusive jurisdiction and venue of this court, without regard to any conflicts of law principles. There are no agreements, representations, conditions or warranties expressed or implied other than those specified herein. If any provision of these terms and conditions is found by a court or administrative body of competent jurisdiction to be invalid or unenforceable, it shall not affect the other provisions of these terms and conditions which shall remain in full force and effect. Except as specifically provided in this Agreement, no amendment or change in the provisions of this Agreement or of any exhibit shall be effective or binding upon either Party unless in writing executed by such Party.
COMPLIANCE WITH LAWS
Each of the Parties hereby represents and warrants that, to the best of its knowledge and understanding, all obligations pertaining to and benefits derived under this Agreement are in full compliance with all applicable International, National, Local, and applicable credentialing bodies, laws, rules and regulations (“Applicable Laws”), as they exist now, and as they may be amended from time to time. Each Party covenants and agrees to maintain compliance with all Applicable Laws as presently existing and as hereafter amended, throughout the duration of this Agreement, and to use its best efforts to notify the other Party of any change in the Applicable Laws of which it becomes aware that may affect the obligations of either Party under this Agreement. In the event of a violation by either Party of the Applicable Laws, or an investigation into an alleged violation, PHOTON and CUSTOMER shall each take all measures necessary to promptly remedy any such violation with the other Party and its legal representatives in the investigation and defense of any such claim or action, to the extent that the Parties’ interests are not adverse to one another.
PHOTON shall defend, indemnify and hold harmless CUSTOMER, its trustees, directors, officers, agents, employees and contractors (“Indemnified Parties”) from and against any and all inter-party and/or third party demands, claims, lawsuits, assessments, judgments, settlements, fines or expenses including costs and reasonable attorneys' fees (or upon the option of the Indemnified Party, PHOTON shall provide a defense to the Indemnified Party) (“Losses”), which result from actual negligence, or intentional misconduct of PHOTON, its directors, officers, employees, contractors, agents, or representatives arising under this Agreement. The terms of this Paragraph shall survive the termination of this Agreement.
INTENT OF THE PARTIES
It is not the intent of either CUSTOMER or PHOTON that any payments made under this Agreement be in return for the referral of ongoing business, if any, or in return for the purchasing, leasing, or ordering of any services other than the specific services described in this Agreement. All payments specified in this Agreement are consistent with what the Parties reasonably believe to be a fair market value for the goods or services provided.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument.
The Parties have accepted that these Terms and Conditions are drafted in English.
Les Parties ont accepté que ces Termes et Conditions soient rédigés en anglais.