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1. Definition
“QED “and “QED Optics” are registered trademarks of QED Technologies International, Inc., 1040 University Avenue, Rochester, New York, 14607.

2. Delivery
Delivery shall be f.o.b. origin (Customer shall pay all shipping costs), all risk of loss shall pass to Customer upon delivery to carrier or into Customer’s transports, and Customer shall be responsible for obtaining insurance if desired.

3. Freight and Taxes
Any tax, tariff, duty or charge which QED may be required to pay or collect, now or hereafter imposed by any governmental authority or agency, foreign or domestic, with respect to the sale, purchase, production, processing, storage, delivery, transportation, use or consumption of any of the products or services covered hereby including all taxes upon or measured by receipts from sales or services, shall be for the account of Customer, and any such charge may be added by as a separate item to QED’s invoices.

4. Payment
All accounts are payable in United States funds, free of exchange, collection, wire transfer, or other charges, and are due Net30 days from the date of invoice unless otherwise specified in the quotation. If Customer fails to fulfill the terms of payment, or if QED shall have any doubt at any time as to Customer’s financial responsibility, QED may suspend production and/or decline to make shipment or delivery except upon receipt of cash or security satisfactory to QED. Customer shall reimburse QED for reasonable out-of-pocket travel, food and lodging and other approved expenses that are incurred in connection with the services provided.

5. Shipment
The method, routing and agency of transportation shall be selected by QED unless specified to the contrary of the face hereof, QED reserves the right to ship freight collect and the right to defer shipment for a reasonable period of time for cause.

6. Force Majeure
QED shall not be liable for any delay in performance due to fire, explosion, flood, accident, Acts of God, terrorist act, strike, shortage of utility, facility, raw material or labor, delay in transportation, breakdown, compliance with or other action taken to carry out the intent or purpose of any law or regulation, or any other causes or contingencies, whether similar or dissimilar, beyond QED’s control. QED shall have such additional time for performance as may be reasonably necessary under the circumstances and may cancel, suspend, or reduce affected deliveries, but the contract shall otherwise remain in force. QED shall have the right to apportion its production and services among its customers in such manner as it may deem equitable. In the event QED is prevented by any governmental restriction from increasing any price in effect herein or from continuing any such price, QED may terminate this contract by written notice to Customer sent thirty (30) days prior to the date of termination.

7. Limited Warranty and Claims
QED warrants that the services will be performed in a workmanlike and professional manner by individuals who have skill and experience commensurate with the requirements of the services. Subject to the preceding sentence, QED makes no representation or warranty of any kind, express or implied, as to merchantability, and fitness for a particular purpose or any other matter with respect to such services. In no event shall QED be responsible or liable for any special, indirect, incidental or consequential damages with respect to such services, including, without limitation, for lost profits or business failure incurred by customer or any third party, whether in an action in contract or tort, even if QED has been advised of the possibility of such damages. Upon written notice of a breach of this limited warranty, QED shall bring such Services into compliance.  This remedy, together with Section 18 (in QED’s discretion), shall be the exclusive remedy of Customer for any breach of warranty. Any claim for breach of warranty must be made by written notice to QED within 30 days of completion of the services upon which the claim is based.

8. Tools and Methods; Products and Services
Unless explicitly stated otherwise in the quotation, all tools and methods used in the assembly and/or manufacture of the Optical Products shall be the sole and exclusive property of QED, whether or not the Customer has provided funding through NRE charges or some other vehicle for such tools and methods. QED reserves the right to invoice for NRE charges upon receipt of the purchase order. In connection with the services and Optical Products, all techniques, development methodologies and solutions, designs, know-how and other information and materials owned or developed by QED, including all intellectual property and inventions related to the services and Optical Products, and all derivatives, extractions, enhancements, improvements and modifications of the foregoing shall be the sole and exclusive property of QED.  Upon payment in full for the services and products hereunder, QED grants Customer the non-exclusive, perpetual, nontransferable, royalty-free right and license to use such intellectual property (solely as incorporated into the Optical Products) solely for Customer’s own internal business processing operations, provided that Customer complies with all applicable laws with respect thereto. Nothing in this Agreement shall be construed as precluding or limiting in any way the right of QED to provide consulting or other services of any kind or nature whatsoever to any person or entity as QED in its sole discretion deems appropriate.

9. Customer Furnished Material
QED will utilize commercially reasonable efforts to safeguard customer’s material and maximize the yield from said material, but QED assumes no financial liability for material used or damaged during processing.

10. Technical Support
Customer’s engineering and technical personnel may from time to time render assistance, give technical advice or discuss or effect and exchange of information with QED personnel concerning the work hereunder. Such actions and conversations shall not be deemed to be a formal “change” until written confirmation is received and acknowledged by QED.

11. Intellectual Property
QED does not grant Customer a license to any of its patents, copyrights, trade secrets or other intellectual property by virtue of the transactions subject to this Agreement. Customer agrees that it will not share with any third party and/or misappropriate QED’s intellectual property or confidential information, provided it is marked as such.

12. Inspection
Upon obtaining the prior written consent of QED, which may be provided at QED’ sole discretion, and subject to appropriate confidentiality agreements, Customer may inspect certain portions of QED’ facility, as specified by QED in its sole discretion, that are utilized by QED to provide services to Customer.

13. Jurisdiction
Any claim or dispute arising hereunder shall be determined in a Federal or state court in the State of New York in the United States of America pursuant to the laws thereof. The contract evidenced by the Quotation shall be deemed to have been made therein and governed by the choice of laws made herein.

14. Entire Agreement
The Quotation, including all terms, conditions, and provisions on the front hereof, constitutes a final, complete and exclusive expression of the entire agreement between the parties with respect to the transaction or transactions covered hereby and cannot be supplemented, modified, discharged, extended or renewed, except as herein provided, except by further agreement in writing signed by both parties.  Any terms and conditions stated by Customer, either on a purchase order or otherwise, which are in conflict with the terms and conditions stated herein are expressly waived by Customer and disclaimed by QED.

15. Reschedule / Cancellation
In the event of a delivery reschedule, inventory charges of 2% per month may apply. In the event of cancellation of any contract, the Customer shall immediately pay all outstanding invoices and the Customer further agrees to pay for all work in progress as of the date of any such notification. In addition, the Customer will reimburse QED for any unrecovered expenses incurred by QED specifically for Customer contract fulfillment.

16. Indemnification
Customer agrees to defend and indemnify QED for any and all damages and expense arising out of (i) the use, storage, sale, processing or handling of customer furnished materials, (ii) Optical Products manufactured to customer specifications hereunder, and/or (iii) the action or inaction of Customer or its employees, customers, or agents, which may cause injuries or damage or QED or give rise to claims against QED. Customer shall defend & indemnify QED against any loss or liability resulting from an alleged infringement of any patent when the claim arises out of goods manufactured to specifications provided by the Customer, or where the alleged infringement arises out of Customer’s use of the goods or incorporation of the goods into any product.

17. Claims and Returns
In the event that the Customer claims that any Products supplied by QED do not conform to specifications and QED accepts such a claim, QED will either repair or replace such non-conforming Optical Products or shall credit the Customer’s account for the value of the same. In any case, any such Customer Claim must be made within 30 days of delivery.

18. Limitation of Liability

A. QED shall have no liability whatsoever beyond the price paid by the Customer for the Optical Products for any defective goods. In no event will QED be liable for loss of profits, direct or indirect, or special or consequential damages arising from the sale of any defective goods.

B. QED shall have no liability for customer furnished material, tooling or custom equipment, damaged while in QED’s possession. QED shall at its discretion determine what remedy, if any, will be provided as a result of said damage.

19. Severability
The terms and conditions shall be deemed severable. In the event that any provision herein is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by applicable law, and such determination shall not affect the validity and enforceability of any other remaining provisions.

QED: Terms and Conditions, Revision A 9/1/2016