Terms and Conditions

Advanced Photonic Sciences Terms and Conditions of Sale

GENERAL:  All orders are subject to approval and acceptance by Seller. Seller shall not be liable to Buyer or any other party by reason of its failure to accept any order. Seller accepts order and sells items only in accordance with the terms and conditions contained herein, unless specifically agreed to the contrary in writing by a duly authorized officer of Seller. Notwithstanding any contrary provisions that Buyer may propose, Seller’s acceptance of any order is conditional upon Buyer’s assent to the terms and conditions contained herein. Acceptance by Buyer of items delivered by Seller shall constitute Buyer’s assent.

No provisions of this Quote may be modified, waived, or amended unless reduced to writing and signed by the Seller.

Seller represents that with respect to the production of the articles covered by this Price Quote, it has fully complied with the Fair Labor Standard Act of 1938, as amended.

These terms and conditions are incorporated into and made a part of that certain Development Agreement between Buyer and Seller of even date herewith.

PRICES AND CHARGES: The prices for all items (materials or services) to be furnished by Seller under any order are in United States dollars, and include provisions for packaging in accordance with standard commercial practices. Buyer shall be billed for items at prices in effect on the date of Seller’s acceptance of Buyer’s order for such items. Seller shall not be responsible for and Buyer shall pay all freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges; provided, however, that Seller may at Seller’s option, pay any or all such charges on behalf of Buyer and include such amounts in invoices to Buyer. Buyer-requested order changes require Seller’s prior written consent. Seller reserves the right to change quoted process in the case of any functional specification changes, incremental changes in write times, or fluctuation in raw material costs to the Seller.

TERMS OF PAYMENT: Unless progress payments as determined by Seller are required or Seller decides that Buyer’s financial condition makes C.O.D. payments or advance payment necessary, payment shall be made in full thirty (30) days from invoice date (which will not be prior to shipment date). A payment by check from a non-US bank may have additional fees charged when it is deposited in a US bank. If that should occur, these fees will be added to your account. If a balance remains unpaid after thirty (30) days from original billing date a late payment charge will be added to the past-due balance at the rate of one and one-half (1.500%) per month thereafter: should collection be required, Buyer shall pay all reasonable Seller’s collection or litigation expenses, including reasonable attorney fees.

DELIVERY: Delivery of all items shall be made F.O.B; Seller’s designated domestic point of shipment. Title and risk of loss or damage shall, in all cases, pass to Buyer upon Seller’s delivery to a common carrier or other delivery agency for shipment to Buyer. It shall be the responsibility of Buyer to file claims with the carrier for any loss or damage occasioned to goods while in transit. Seller shall use reasonable efforts to satisfy delivery dates requested by Buyer buy shall have no obligation to satisfy such dates unless obligation is agreed to in writing signed by a duly authorized officer of Seller. Notice of nonconformity shall be given within thirty (30) days after receipt of the items involved.

WARRANTY AND LIMITATION OF LIABILITY: Seller warrants that items sold to Buyer will conform substantially to Seller’s specifications, and will be free from material defects caused by faulty material or poor workmanship for a period of twelve (12) months after shipment from Seller. Except as expressly set forth in the immediately preceding sentence, Seller has not made and does not hereby make any representations or warranty, express or implied, with respect to the merchantability, performance, suitability or fitness of the items for Buyer’s use or Buyer’s customer’s use. Seller’s liability under this warranty is limited to the obligation to repair or replace, without charge, at Seller’s sole option, or refund the purchase price for any items, which are returned to Seller with all transportation charges prepaid, which are identified by Buyer to Seller within thirty (30) days after delivery to Buyer, and which are found by Seller to be defective under the terms of this warranty. This warranty does not apply to any damage resulting from accident, misuse, or abuse; furthermore, this warranty is void in the event any unauthorized person alters or repairs the item. The warranty stated herein is in lieu of AND SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY THAT ITEMS SOLD WILL OPERATE WITHOUT INTERRUPTION. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. FURTHER, THE WARRANTY STATED HEREIN IS IN LIEU OF all other obligations for liabilities on the part of Seller, and Seller neither assumes nor authorizes any other person to assume for it any other liability. Buyer expressly waives any right, claim or cause of action that might otherwise arise out of the purchase and use of Seller’s materials and service. In no event shall Seller be liable for special or consequential damages of any nature with respect to any material sold or delivered, or any service rendered (including, without limitation, any loss or damage resulting from defects in the materials or services). further, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY UNDER THESE TERMS AND CONDITIONS AND THE DEVELOPMENT AGREEMENT FOR ANY DAMAGES, UNDER ANY THEORY OF LIABILITY, EXCEED AMOUNTS PAID BY BUYER TO SELLER FOR ITS PERFORMANCE OF SERVICES OR PROVISION OF PRODUCTS UNDER THESE TERMS AND CONDITIONS AND THE DEVELOPMENT AGREEMENT.

NOTICE OF CLAIM: Immediately upon receipt, Buyer shall inspect items for any defects. All claims or defects discoverable upon inspection must be made in writing within fifteen (15) days after Buyer learns of the facts upon which the claim is based, but in no event later than thirty (30) days after Buyer’s receipt of goods.

FORCE MAJEURE: Seller shall not be liable for any loss, cost, expense or damage if the fulfillment by Seller of any order or any other obligation to buyer is delayed or prevented due to any cause beyond Seller’s reasonable control including, but not limited to, compliance with any government law or regulation, acts of God, acts of civil or military authority, judicial action, priorities, labor disputes, failure or delays in transportation, embargoes, wars, riots, production or engineering delays, or inability of Seller or its vendors to secure adequate materials, manufacturing facilities or labor. In the event of any delay due to such causes or other difficulties, whether or not similar in nature to any of these enumerated, the delivery dates shall be extended for a period equal to the extent of the delay so incurred.

TAXES: Prices quoted are exclusive of any sales, use, excise, ad valorem or other like taxes, and (on items sold outside the United States) customs, duties, licenses and permits, applicable to the sale, use or delivery of materials or services. In the event that any such tax or duty is payable, the amount thereof may be added by Seller to the price, and in all cases be paid by Buyer.

PROPERTY RIGHTS: Seller retains ownership of its models, patterns, dies, molds, jigs, fixtures, tools, software and hardware made for furnishing any items to Buyer and retains ownership of its proprietary data (including, without limitation, design engineering, software programs and technical information – whether or not patentable – and trade secret information, such as secrets contained in manufacturing methods or processes, treatment and chemical compositions, and plant layout and tooling). Any such proprietary data obtained by Buyer shall not be used by Buyer, nor shall such proprietary data be disclosed by Buyer to others unless, prior to Buyer’s disclosure, such data was already known to the general public other than as a result of any violation by Buyer of any provision hereof. By purchasing Seller’s product or products, Buyer certifies that internally, or through any outside company, Buyer will not re-engineer, dismantle, re-manufacture or duplicate technology for sale or otherwise, of any product supplied by Seller.

DEFAULT: Seller shall have the right to stop work at any time and to withhold deliveries of any items ordered (including any portion of an order) if any payment due to Seller from Buyer shall not be paid in full when due. If Seller shall invoke the foregoing right, the full purchase price for all items completed, whether or not shipped, shall become due and payable, and Buyer shall pay to Seller a reasonable charge for any goods and work in process.

TERMINATION: After acceptance or acknowledgement by Seller of any order, such order may not be terminated nor may any part of such order be terminated (unless due to Seller’s default) by Buyer without the written consent of Seller signed by a duly authorized officer of Seller. If Buyer terminates any order or any part of any order, as permitted hereunder, Buyer shall pay to Seller the purchase prices for all items completed, whether or not shipped, and Buyer shall pay to Seller a reasonable charge for any goods and work in process.
APPLICABLE LAW: Pennsylvania Law applicable to agreements executed and to be performed in the State of Pennsylvania shall govern all matters relating to sales by Seller to Buyer, including the validity and interpretation of these terms and conditions of sale.

ASSIGNMENT: No assignment of any order by Buyer shall be valid without Seller’s prior written consent.

AMENDMENTS: No provision in any order or any other writing (except a writing signed by a duly authorized officer of Seller) shall in any way increase Seller’s obligations or decrease Seller’s rights in connection with any sale by Seller to Buyer.

CONFLICTS: These terms and conditions shall supercede any conflicting terms and conditions contained in any purchase order or similar document from Buyer to Seller unless Seller accepts such other terms in writing. To the extent there is a conflict between these terms and conditions and the Development Agreement, these terms and conditions shall govern.

INDEMNIFICATION: Buyer hereby agrees to indemnify and save harmless Seller, and Seller’s representatives, agents and employees, from and against all liability claims and demands on account of injury to persons including death resulting there from and damage to property arising out of (a) the performance of this contract by Buyer, or its employees, and agents, (b) Buyer’s property, (c) Buyer’s use of the items purchased hereunder, or (d) Buyer’s breach of these terms and conditions, except from and against such claims and demands which may arise out of the sole negligence of the Seller or its agents or any subsidiaries. Buyer shall, at its own expense, defend any and all actions at law brought against Seller, or any other indemnified party, based thereon and shall pay all attorney fees and all other expense and promptly discharge any judgment arising there from. These conditions shall also apply to any of Buyer’s subcontracted operations.

Additional Blanket Order Terms and Conditions:

Buyers purchasing lasers or parts under a Blanket Order Purchase Order must purchase the entire Blanket Order quantity within 1 year of the date of the Vendor Purchase Order to obtain the quantity pricing. If Buyer fails to purchase the required quantity in one year, Seller will Invoice Buyer for the difference in price between the Blanket Order price and the price of the lasers at the quantity purchased. Seller reserves the right to review each Blanket Purchase Order at any time, and to cancel Blanket Purchase Orders that fail to meet Sellers expectations.

Send all correspondence to: Advanced Photonic Sciences, LLC, 26741 State Route 267, Friendsville, PA 18818

Authorized Signature: ______________________________________