Eblana Photonics Terms and Conditions of Sale

Scope

Eblana Photonics Terms and Conditions of Sale shall be the sole terms and conditions governing the sale of Eblana Photonics products (“Products”) to the party listed on the purchase order or other order documentation (“Buyer”). Eblana Photonics’ acceptance of Buyer’s order is expressly conditioned on Buyer’s acceptance of these terms and conditions.

Prices

All prices are invoiced and payable in either Euro or U.S. Dollars as agreed between Eblana Photonics and the Buyer. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions that are not a part of the original price quotation. Prices are exclusive of all federal, state, municipal or other government excise, sales, use, occupational or like taxes, tariffs, customs, duties and importing fees, the payment of which shall be the sole responsibility of Buyer regardless of whether invoiced to Buyer by Eblana Photonics. Prices are consequently subject to increase by the amount of any such tax, tariff, duty or fee that Eblana Photonics pays or is required to pay or collect upon sale or delivery of the Products. Any certificate of exemption or similar document or proceeding required to exempt the sale of Products from sales or use tax liability shall be obtained by Buyer at its expense. Prices may be adjusted if Products are not tendered for delivery within twelve (12) months after Eblana Photonics’ receipt of the order for such Products. If Buyer fails to take delivery of the quantity of Products upon which a quantity discount price, if any, is based, Buyer will be back-billed an amount based on the quantity actually delivered hereunder and upon the quantity pricing schedule in effect at the time the order was placed. Such charges will be in addition to any cancellation charges.

Terms of Payment

Terms of payment are net thirty (30) days from the date of invoice, or as otherwise stipulated by Eblana Photonics at the time of purchase. Eblana Photonics will issue invoices on delivery in the case of all Products; and if deliveries are authorized in instalments, each shipment shall be invoiced and paid when due without regard to other scheduled deliveries. Amounts owed by the Buyer with respect to which there is no dispute shall be paid without set-off for any amounts that the Buyer may claim are owed by Eblana Photonics and regardless of any other controversies that may exist. Buyer does hereby grant to Eblana Photonics a security interest in the Products and proceeds therefrom as security for the performance by Buyer of all its obligations hereunder.

Shipment

Except as otherwise stated herein, all Products will be shipped FCA (Incoterms 2010) (Eblana Photonics’ premises) or as otherwise designated by Eblana Photonics in a notice to Buyer. Eblana Photonics reserves the right to make shipments in instalments. Eblana Photonics reserves the right to make shipments when Product is available and shall invoice shipments as made. Eblana Photonics will confirm in writing, and amend as appropriate, the shipment schedule. Eblana Photonics will not assume any liability in connection with the shipment or constitute any carrier as its agent. Buyer shall be responsible for making all claims with carriers, insurers, warehousers and others for non-delivery, loss, damage or delay. All claims for damages to the Products or shortages must be made within thirty (30) days of shipment. Under no circumstances shall Eblana Photonics be liable to Buyer for any delay either in shipment or in delivery.

Title and Risk of Loss

Ownership of, and risk of loss with respect to, the Products shall pass to Buyer upon delivery thereof by Eblana Photonics to Buyer or to a carrier for shipment to Buyer, whichever is earlier, regardless of whether Eblana Photonics will install or supervise the instalment of the Products.

Cancellation, Rescheduling, Returns and Modifications

The parties agree that Buyer shall be entitled to reject a shipment only if: (1) the shipped Products fail to meet Eblana Photonics’ stated specifications, (2) Eblana Photonics receives written notice of such failure to meet the stated specifications with full explanation within thirty (30) days from date of shipment by Eblana Photonics, and (3) such failure is substantiated. In such event, Eblana Photonics will either correct such failure or authorize return.

Source Inspection

Source inspection by Buyer or Buyer’s customer must be stipulated in writing, at the time of ordering, and is subject to reasonable charges and safety and security conditions. Buyer shall have no right of access to any Eblana Photonics facility except as specifically authorized in advance by Eblana Photonics. Buyer or Buyer’s agent shall indemnify and hold Eblana Photonics harmless from any and all suits, damages, and expenses of Buyer, his agent or his customer resulting from personal injury including death or loss or damage of property occurring during, or in connection with, any visit to any Eblana Photonics facility.

Warranty

Except as otherwise provided herein, Eblana Photonics warrants to the Buyer that for one (1) year from the date title to the Product passes, each Product sold hereunder will be free of defects in materials or workmanship and will conform to specifications set forth in published data sheets. Conformity to specifications shall be to those specifications published at the time title passes. Eblana Photonics’ sole liability and responsibility under this warranty is to repair or replace any Product that is returned to it by Buyer and that Eblana Photonics determines does not conform to the warranty or credit Buyer’s account for such returned Product. Product returned to Eblana Photonics for warranty service will be shipped to Eblana Photonics at Buyer’s expense and will be returned to Buyer at Eblana Photonics’ expense. Eblana Photonics’ obligation to honour its warranty is contingent upon receipt of payment in full for the Products entitled to such warranty.

Warranty Disclaimer

EXCEPT AS PROVIDED HEREIN, EBLANA PHOTONICS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. EBLANA PHOTONICS SHALL HAVE NO WARRANTY OBLIGATION UNTIL IT RECEIVES PAYMENT IN FULL FOR THE PRODUCT UNDER WARRANTY. LABELING ON PRODUCTS AND PACKAGING IS INTENDED SOLELY FOR COMPLIANCE WITH APPLICABLE LAW AND EBLANA PHOTONICS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, THAT ARISE FROM SUCH LABELING OTHER THAN AS REQUIRED BY APPLICABLE LAW. IN NO EVENT SHALL EBLANA PHOTONICS BE RESPONSIBLE UNDER ITS WARRANTY FOR ANY DEFECT THAT IS CAUSED BY NEGLIGENCE OF BUYER OR A THIRD PARTY, STATIC DISCHARGE, MISUSE OF A PRODUCT OR MISTREATMENT OF A PRODUCT. EBLANA PHOTONICS SHALL HAVE NO RESPONSIBILITY FOR ANY PRODUCT THAT HAS BEEN ALTERED OR MODIFIED IN ANY WAY. EBLANA PHOTONICS SHALL HAVE NO RESPONSIBILITY TO THE EXTENT ANY DEFECT OR FAILURE IS CAUSED BY NONCOMPATIBILITY OF THE PRODUCTS WITH OTHER COMPONENTS USED BY BUYER. EBLANA PHOTONICS SHALL HAVE NO RESPONSIBILITY FOR NONSTANDARD PRODUCTS OR PRODUCTS PURCHASED THROUGH UNAUTHORIZED CHANNELS. THE WARRANTY OF REPLACEMENT PRODUCTS SHALL TERMINATE WITH THE WARRANTY OF THE PRODUCT.

Limitations of Liability

EBLANA PHOTONICS’ EXPRESS WARRANTY TO BUYER AND THE INTELLECTUAL PROPERTY INDEMNITY DESCRIBED HEREIN ARE SOLELY FOR THE BENEFIT OF BUYER AND NO OTHER PARTY, CONSTITUTE EBLANA PHOTONICS’ SOLE LIABILITY AND THE BUYER’S SOLE REMEDY WITH RESPECT TO THE PRODUCTS, AND ARE IN LIEU OF ALL OTHER WARRANTIES, INDEMNITIES, LIABILITIES AND REMEDIES. UNLESS OTHERWISE EXPRESSLY PROVIDED IN A WRITING SIGNED BY BOTH PARTIES, EBLANA PHOTONICS DOES NOT INDEMNIFY, NOR DOES IT HOLD BUYER HARMLESS, AGAINST ANY LIABILITIES, LOSSES, DAMAGES AND EXPENSES (INCLUDING ATTORNEY’S FEES) RELATING TO ANY CLAIMS WHATSOEVER, INCLUDING WITHOUT LIMITATION, CLAIMS FOR PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE RELATING TO THE PRODUCTS SOLD HEREUNDER. IN NO EVENT SHALL EBLANA PHOTONICS BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE DAMAGES, DUE TO ANY CAUSE WHATSOEVER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF EBLANA PHOTONICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST EBLANA PHOTONICS MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS ACCRUED. THE TOTAL LIABILITY OF EBLANA PHOTONICS TO BUYER AND/OR ANY OTHER PARTY FROM ANY LAWSUIT, CLAIM, WARRANTY OR INDEMNITY SHALL NOT EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY BUYER TO EBLANA PHOTONICS FOR THE SPECIFIC PRODUCTS (AS IDENTIFIED BY PART NUMBER) SOLD UNDER THE ORDER SHIPMENT(S) AT ISSUE WITHIN THE PRIOR TWELVE (12) MONTHS THAT GAVE RISE TO THE LAWSUIT, CLAIM, WARRANTY OR INDEMNITY. THE EXISTENCE OF MULTIPLE CLAIMS RELATED TO THE SAME PRODUCT AT ISSUE SHALL NOT ENLARGE OR EXTEND THIS LIMIT.

Non-Approved Applications

Eblana Photonics shall have no liability in connection with any non-approved uses of its Products by any person.

Intellectual Property Rights Indemnity

Eblana Photonics agrees to indemnify and defend Buyer against any claim that a Product, as delivered, infringes a valid and enforceable patent, copyright, trademark or other intellectual property right, provided that Eblana Photonics is promptly advised of any such claim or action and has sole control of the defence of any such action and all negotiations for its settlement or compromise (”Claim”). Buyer shall provide Eblana Photonics with all information and assistance required by Eblana Photonics to defend any such Claim. Eblana Photonics shall not be responsible for any settlement or compromise made without its prior written consent. Eblana Photonics shall have no obligation to reimburse Buyer for costs and expenses incurred in connection with a Claim until the Claim is fully litigated or properly settled or compromised. If at any time use of a Product is the subject of a Claim or, in the opinion of Eblana Photonics, is likely to become the subject of a Claim, Eblana Photonics shall have the right, but not the obligation, at its sole option and expense, to either procure for Buyer the right to continue using the Product, replace or modify the Product so that it becomes non-infringing or accept the return and grant Buyer a credit for the Product as depreciated. If Eblana Photonics elects to accept the return, Buyer shall return to Eblana Photonics any and all Products remaining in Buyer’s possession, custody or control. Eblana Photonics shall not have any liability to Buyer for any infringement or other violation of a third party right that is based in any way upon (i) the use of the Product in combination with other components or equipment not furnished by Eblana Photonics; (ii) the use of the Product in practicing any process or method; (iii) any Product that has been modified or altered; (iv) the manner in which the Product is used even if Eblana Photonics has been advised of such use; (v) Eblana Photonics’ compliance with the Buyer’s designs, specifications or instructions; (vi) the use of the Product after Buyer has received notice of such infringement or other violation, and Eblana Photonics has offered a replacement, modification or refund therefor, or (vii) compliance with an industry standard or communication protocol. THE ABOVE INDEMNITY STATES BUYER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND IS IN LIEU OF ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO INFRINGEMENT.

Assignment

These terms and conditions are not assignable by Buyer and any attempt to assign any rights, duties or obligations arising hereunder shall be void.

Force Majeure

Eblana Photonics shall not be liable for any loss or damage resulting from any delay in delivery or failure to give notice of delay when such delay is due to any cause or event beyond Eblana Photonics’ control, including, without limitation, acts of nature, pandemics, epidemics, unavailability of supplies or sources of energy, riots, wars, terrorist acts, sabotage, fires, strikes, labour difficulties, delays in transportation, delays in delivery or defaults by Eblana Photonics’ vendors, or acts or omissions of the Buyer. In the event of delay due to any such cause, time for delivery shall be extended for a period of time equal to the duration of such delay and the Buyer shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of one-hundred-twenty (120) days, Eblana Photonics or Buyer shall have the right by written notice to the other to cancel the order for the Products subject to the delayed delivery without further liability of any kind.