QED Optics: Terms & Conditions
The terms and conditions contained herein (the “Terms”) govern the entire relationship between QED Technologies International, Inc. (“QED”) and the buyer listed on any Order (along with applicable subsidiaries and affiliates, the “Buyer”), including any required documentation related thereto. Unless specifically agreed to by QED in writing, QED shall not be bound by any other terms and conditions listed or otherwise referenced in any document submitted by Buyer, including any purchase order. An “Order” shall mean any purchase order delivered by Buyer that has been accepted by QED pursuant to an order acknowledgement, and is in accordance with a valid and current quote issued by QED (a “Quote”).
QED Optics, a division of QED, will provide certain services (“Services”) to Buyer which may include processing of parts and/or materials in accordance with specifications in an Order (such final parts and/or materials the “Deliverables”). QED Optics is a registered trademark of QED.
1. Services and Delivery
(a) The mode, manner, method and means used by QED in performing the Services and the apportioning of the Services amongst its customers shall be of QED’s selection and under the sole control and direction of QED.
(b) All Deliverables shall be shipped and the risk of loss or damage shall pass to Buyer in accordance with the shipping terms as stated in a Quote. In the absence of any shipping terms referenced in a Quote, all Deliverables shall be shipped and the risk of loss or damage shall pass to Buyer as follows:
(1) For international sales, EXW QED’s shipping docks in Rochester, NY in accordance with Incoterms 2010. Buyer shall select the manner, method, carriage and carrier.
(2) For domestic sales, FCA Buyer’s shipping dock in accordance with Incoterms 2010. QED shall select the manner, method, packing, carriage, and carrier.
Buyer shall be responsible for payment of all transportation charges specified in the Quote. Damage to Deliverables incurred during shipment is excluded from the limited warranty set forth below. Buyer shall recover any related damages directly from the carrier. QED reserves the right to defer shipment for a reasonable period of time for cause.
QED’s quoted prices for Deliverables or Services are exclusive of any federal, state, local, municipal or other government tax and import or export duties, taxes, and fees. Such taxes shall be paid by Buyer or, in the alternative, Buyer shall provide a tax exemption certificate to QED, in a form acceptable to the relevant taxing authorities.
3. Prices and Payment Terms
(a) QED’s quoted prices for Deliverables or Services are firm for a period of thirty (30) calendar days from the date of issuance of the Quote, unless otherwise extended in a written instrument signed by QED. Promises or conditions related to pricing not contained in a Quote shall not be binding on either party. Delivery and any related production times furnished in a Quote are only estimates and are not binding on QED.
Buyer 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.
(b) Payment shall be made in accordance with the payment terms set forth in a Quote. In the absence of any payment terms in a Quote, 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.
For all sales, QED may, at its option and in its sole discretion, require an irrevocable confirmed letter of credit unconditionally accepted at Rochester, NY, USA, payable on demand in United States currency, to be opened not less than thirty (30) days prior to the payment schedule list above. A sample letter of credit will be provided by QED upon request.
Upon noncompliance with any agreed upon payment terms, Buyer shall be in default without the need for demand for payment by QED. Interest will be charged at the rate of one and one and one-half percent (1-1/2%) per month (or, if less, the highest rate then permitted by applicable law) on amounts not paid when due as set forth above. In the event there are scheduled payments and to the extent applicable, QED reserves the right to suspend Services until Buyer fulfills all required payments.
4. Term and Termination
(a) These Terms shall be in effect for a period of one (1) year beginning on the date of any Order (“Initial Term”) and will automatically renew.
(b) These Terms may be terminated by either party for any reason upon thirty (30) days’ prior written notice to the other party. If Services under any Order extend beyond termination of these Terms, the Terms will automatically extend until such Services are completed.
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 these Terms by written notice to Buyer sent thirty (30) days prior to the date of termination.
5. Order Cancellation by either Party
Either party may, at its election, cancel any Order by written notice to the other party. Nothing herein shall relieve Buyer of its continuing obligations of payment. In the event of an Order cancellation by QED under this section, any Buyer provided parts/materials will be returned to Buyer at Buyer’s sole cost and expense. In the event of any cancellation under this section, the Buyer shall immediately pay all outstanding invoices and the Buyer further agrees to pay for all work in progress as of the date of any such notification. In addition, the Buyer will reimburse QED for any unrecovered expenses incurred by QED specifically for Buyer Order fulfillment.
At QED’s sole discretion, upon obtaining the prior written consent of QED, and subject to appropriate confidentiality agreements and compliance restrictions (e.g. ITAR), Buyer may inspect certain portions of QED’s facility, that are utilized by QED to provide Services to Buyer.
7. Technical Support
Buyer’s engineering and technical personnel may from time to time advise, offer technical advice or discuss and exchange information (“Buyer Directions”) with QED personnel concerning the Services and Deliverables. Such Buyer Directions shall not be deemed to be a formal “change” until written confirmation is received and acknowledged in writing by QED. QED may rely, in performing the Services, upon any Buyer Direction or any other information, data, document or instrument supplied by Buyer.
8. Intellectual Property
In connection with the Deliverables and Services, 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 Deliverables and Services, 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 Deliverables and Services hereunder, QED grants the Buyer the non-exclusive, perpetual, nontransferable, royalty-free right and license to use such intellectual property (solely as incorporated into the Deliverables) solely for the Buyer’s own internal business processing operations, provided that the Buyer complies with all applicable laws with respect thereto. Nothing in an Order or these Terms 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. Where non-recurring engineering (“NRE”) charges apply (or some other similarly restrictive finance structure is used by Buyer), the parties shall agree upon specific intellectual property matters related to NRE in an Order.
9. Limited Warranty and Claims
(a) 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 and that all Services and Deliverables shall conform to all specifications in an applicable Order. 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. Upon written notice of a breach of this limited warranty, QED shall bring such Services into compliance. This remedy shall be the exclusive remedy of Buyer for any breach of warranty. Any claim for breach of warranty must be made by written notice to QED within thirty (30) days of completion of the Services upon which the claim is based.
(b) In the event that the Buyer claims that any Deliverables supplied by QED do not conform to specifications and QED accepts such a claim, QED will either repair or replace such non-conforming Deliverables or shall credit the Buyer’s account for the value of the same. In any case, any such Buyer claim must be made within thirty (30) days of delivery.
10. Limitation of Liability
In no event shall QED’s liability under these Terms exceed the total Order price for the Deliverables or Services on which such liability is based. QED shall have no liability for Buyer furnished material, tooling or custom equipment, damaged while in QED’s possession.
QED ASSUMES NO LIABILITY UNDER ANY CIRCUMSTANCES, INCLUDING THE NEGLIGENCE OF QED, FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR FOR ANTICIPATED OR LOST PROFITS, LOSS OF TIME OR OTHER RELATED LOSSES INCURRED BY BUYER OR ANY THIRD PARTY IN CONNECTION WITH THE DELIVERABLES OR SERVICES, WHETHER OR NOT OTHERWISE COVERED BY THE WARRANTIES SET FORTH ABOVE.
Buyer expressly agrees to defend, indemnify, and hold harmless QED and QED’s employees, officers and directors for any and all third-party claims for damages and expenses arising out of (i) the use, storage, sale, processing or handling of Buyer furnished materials, (ii) the specifications (including any Buyer Directions) provided by Buyer, (iii) alleged or actual infringement from Buyer’s use of the Deliverables or incorporation of the Deliverables into any product, and/or (iv) the action or inaction of Buyer or its employees, customers, or agents, which may cause injuries or damage to QED or give rise to claims against QED.
12. Laws, Codes and Regulations
Compliance with local, state or federal laws, codes, or regulations relating to user safety, training, product installation, servicing, use and maintenance is the sole responsibility of Buyer. QED does not undertake or assume Buyer’s obligations related to the safety of Buyer’s work place or employees imposed on Buyer by code, regulation, or judicial decision. Buyer shall fully comply with all applicable United States and foreign export and import laws and regulations, including ITAR and EAR obligations of Buyer.
13. Force Majeure
QED shall not be liable for delivery delays, failure to deliver or failure to otherwise perform to the extent occasioned by strikes, lockouts, labor difficulties, riots, inability or difficulty in obtaining or procuring supplies, parts, materials, labor or transportation, fires, storms, earthquakes, explosions, floods, accidents, acts of God, interference by civil or military authorities, whether legal or de factor, acts of the public enemy, war, rebellion, insurrection, sabotage, embargoes, car shortage, orders given priority by any public authority or any other similar or dissimilar cause beyond the control of QED. 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. 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 Buyer sent thirty (30) days prior to the date of termination.
14. Applicable Law and Jurisdiction
These Terms shall be interpreted and construed under the laws of the State of New York, without regard to its conflicts of law rules. Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of New York.
15. Controlling Terms
These Terms supersede and replace those of all other oral or written agreements between the parties with respect to the subject matter hereof, and may not be modified except in a writing signed by an authorized representative of QED and Buyer. QED’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of any of the provisions of these Terms.
All non-public, confidential or proprietary information of QED, including, but not limited to, QED intellectual property and any specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by QED to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by QED in writing. Upon QED’s request, Buyer shall promptly return all documents and other materials received from QED. QED shall be entitled to injunctive relief for any violation of this Section 16. This Section shall not apply to information that is: (i) in the public domain; (ii) known to Buyer at the time of disclosure; or (iii) rightfully obtained by Buyer on a non-confidential basis from a third party.
17. Cumulative Remedies
The rights and remedies under these Terms are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section ¬¬18.
If any term or provision herein is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision herein or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Order including, but not limited to, the following provisions: Sections 8, 9, 10, 12, 14, 16 and 20.