TERMS AND CONDITIONS OF SALE
- Prices: The prices of the products of FiberTech Optica to be sold hereunder are as listed on the front of
this form or as otherwise agreed in writing between FiberTech Optica and the Purchaser.
- Adjustments to prices and ordering policies: Unless a price for a longer period of time has been established by written agreement between FiberTech Optica and the Purchaser, FiberTech Optica reserves the right to change the price of any product without notice. If Purchaser objects in writing to the price increase, FiberTech Optica shall have the option either to continue to supply products at the prices in effect at the time of the notice, or at other prices agreed upon by both parties, or to terminate Purchaser’s order without penalty. Purchaser may order normal quantities of products for shipment at old prices during the notice period. Purchaser shall give FiberTech Optica reasonable advance notice of quantities desire, and FiberTech Optica shall not be required to make shipment more rapidly during the notice period than all other times.
- Payment Terms: All payments shall be made in U.S. dollars. Payment in full is due thirty (30) days after the date of the invoice. Interest at the rate of one and one-half percent (1.5%) per month will be charged on all overdue accounts unless a lower rate is required by Law. FiberTech Optica normal payment terms set forth above are subject to verification of Purchaser’s credit by FiberTech Optica and FiberTech Optica may if in it’s sole judgement Purchaser’s financial condition doe not justify confidence of such normal payment terms, at any time require either full or partial payment in advance or that payment be made by FiberTech Optica sight drafts against an irrevocable letter of credit of a bank satisfactory to FiberTech Optica. In case of default of any payment by Purchaser, Purchaser shall be responsible for all costs of collection including without limitation attorney’s fees and other litigation or settlement costs.
- Shipment: All products are sold and all prices are F.O.B. FiberTech Optica’s factory at Kitchener, Ontario, Canada. Purchaser may at its option request that FiberTech Optica set as Purchaser’s agent to arrange delivery of product. If FiberTech Optica agrees to act as Purchaser’s agent to arrange delivery of products, (a) Purchaser will provide full address to which products are to be delivered, (b) method and route of shipment are at FiberTech Optica discretion, (c) all expenses of shipment are for Purchaser’s account, (d) all shipment will be insured at the Purchaser’s expertise and made at the Purchaser’s risk and (e) Purchaser will indemnify, defend and hold harmless FiberTech Optica from and against all claims, losses, liabilities and expenses (including attorney’s fees and other litigation or settlement costs) arising out of any acts of FiberTech Optica while is acting as Purchaser’s agent.
- Limited Warranty: Fibertech Optica warrants its products for one (1) year from the date of delivery. FiberTech Optica warrants that products delivered under this order will be free of defects in material and workmanship when delivered. This warranty does not extend to any products which have been subject to misuse, accident or improper installation, maintenance or application, nor does it extend to product which have been cabled, installed, repaired or altered outside FiberTech Optica’s plant unless authorized in writing by FiberTech Optica or unless cabling, installation, repair alteration is performed or contracted for by FiberTech Optica, nor does this warranty extend to any labor charges for removal and/or replacement of the nonconforming or defective product or part thereof. THIS WARRANTY IS IN LIEU OF AND INCLUDES ALL OTHER WARRANTIES, EXPRESS OR FITNESS ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT OR PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS. FiberTech Optica shall have no liability for special, indirect, liquidated of consequential damages (including but not limited to damages for lost profits, or injury to persons or property). FiberTech Optica’s liability under this warranty shall be limited at FiberTech Optica’s option, to repairing at FiberTech Optica’s plant or replacing with transportation charges prepaid by Purchaser, this product or component part thereof that is proved to be other than as herein warranted or providing credit for the purchase price thereof.
- Returned material: Products may be returned only with FiberTech Optica’s written permission or accompanied by a return authorization number issued by FiberTech Optica to Purchaser. Only products which have been invoiced to the Purchaser within the previous fifteen (15) days will be considered for return. Products accepted for credit are subject to a restocking and service charge of fifty percent (50%) plus transportation charges. Products returned for credit must be returned in good valuable condition with FiberTech Optica’s original label and legible, transportation charges prepaid by Purchaser.
6A. Returned sample material: The sample must be returned to Fibertech Optica fifteen (15) days after reception of sample. The fiber must be returned in good valuable condition with Fibertech Optica’s original label incase and legible.
- Claims, Indemnification: The liability of FiberTech Optica with respect to a claim on any kind, whether as to quality or amount of product delivered or for non delivery of products, shall not exceed the invoice price of the quantities of products as to which the claim is made. Purchaser shall be responsible for inspecting and testing all products delivered to is hereunder upon receipt and before use by Purchaser. Any claim with respect to products must be made not later than earlier fifteen (15) days after the date of shipment thereof or prior to first use thereof, and failure by Purchaser to give FiberTech Optica written notice of claim or to obtain from FiberTech Optica an authorization number for return with respect to any products within such time shall constitute a waiver by Purchaser of all claims with respect to such products. Products which conform to samples supplied to Purchaser and prequalified or previously accepted and any products used by Purchaser shall be deemed satisfactory and Purchaser shall have no right to make claims with respect to such products. Purchaser assumes all responsibility and liability for injury or damaged resulting from its handling, possession use or sale of products supplied hereunder including, but not limited to any injury or damage resulting from the use of products in Purchaser’s manufacturing operations or in combination with other substances or products, and agrees to defend and indemnify FiberTech Optica from, and against all claims, losses, liabilities and expenses (including attorney’s fees and other litigation or settlement costs) arising out of such handling, possession use or sale.
- Special tooling and equipment: Any special tooling, special test equipment, designs or other facilities which are acquired, produced or used within proprietary processes by FiberTech Optica in connection with this order shall remain the property of FiberTech Optica, notwithstanding anything to the contrary found elsewhere in this order.
- Patents: Unless otherwise agreed in writing by both FiberTech Optica and Purchaser before placement of Purchaser’s first order with FiberTech Optica, FiberTech Optica shall not be liable for the indemnification of Purchaser for damages resulting from the infringement of any Canada or foreign country patent rights arising out of or in connection with any products. In the event that any product supplied hereunder gives rise to any such patent infringement, or allegation thereof, FiberTech Optica expressly retains the right to refer complaining parties to Purchaser for settlement and be include Purchaser as a party defendant in any suit based on such infringement or alleged infringement . Purchaser shall indemnify and hold FiberTech Optica harmless from any and all claims, loss, damage, liability and expense (including, without limitation, reasonable attorney’s fees and disbursements and other litigation and settlement costs, regardless of outcome) arising out of any claims that any product supplied infringes any third-party patent rights.
- Proprietary information: While FiberTech Optica does not contemplate furnishing proprietary information of any kind under this order to Purchaser or to any government entity, any proprietary information pertaining to the work to be performed hereunder which may be furnished by FiberTech Optica to Purchaser or to such governmental entity will remain FiberTech Optica’s property, will be held in confidence by Purchaser. Will be returned to FiberTech Optica upon request and may not be used without FiberTech Optica written permission for any purpose other than its intended use hereunder.
- Force Majeure: Failure of FiberTech Optica to make, or of Purchaser to request or accept any one or more deliveries (or portions thereof) hereunder when due shall not subject the party of failing to any liability to the other if such failure shall be caused or occasioned by act of God or the public enemy, government actions, fire, explosion, flood, drought, war, riot, sabotage, strikes or other labor trouble, failure in whole or in part of FiberTech Optica’s suppliers or any subcontractor to deliver or schedule materials, equipment or machinery to FiberTech Optica interruption of or daily in transportation, shortage of fuel, energy or utilities, or by any other event or circumstance of a similar of different nature beyond the reasonable control of the party so failing and, at the option of the party so failing, the total quantity to be delivered hereunder shall be reduced by the quantity of the delivery or deliveries (or portions thereof) not made on account of any of the above causes, if so event shall FiberTech Optica be obliged to purchase products from other in order to enable it to deliver products to Purchaser hereunder. In the event FiberTech Optica’s supply of any product is reduced under circumstances set forth in the preceding paragraph of this section 11. FiberTech Optica may allocate its entire available supply to its customers and its own requirements on such basis as it shall determine, in its discretion, to be fair and reasonable.
- Product discontinuance: Should FiberTech Optica elect as discontinue, surcall or limit the production or sale of any product as a result of the application of any governmental statute, regulation or order, including but not limited to any statute, regulation or order applicable to prices, transportation, energy, pollution or product safety, which, in FiberTech Optica’s judgement will render the production or marketing of such product economically, technologically or commercially infeasible, FiberTech Optica may, without penalty or other charge, terminate this agreement with respect to such product upon thirty (30) days prior written notice to Purchaser.
- Termination by Purchaser, failure to purchase: In the event that Purchaser terminates this agreement for any reason prior to purchasing and paying for the full quantity or products required to be purchased hereunder, or in the event Purchaser fails for any reason (other than FiberTech Optica’s failure to deliver) to purchase and pay for said quantity prior to the expiration of the term hereof, upon such termination or expiration of this agreement: (a) if the products not so purchased and paid for have been produced by FiberTech Optica prior to such termination or expiration and are not solable to other customers within a reasonable time (in determined by FiberTech Optica), Purchaser will pay FiberTech Optica an amount equal to the entire contract price charges, and (b) in all other cases, Purchaser will pay FiberTech Optica, as liquidated damages, an amount equal to fifty (50%) percent of the contract price for the quantity of goods which Purchaser was required to, but did not, purchase.
- Quantity: If this order is for products which are to be delivered over a period that extends beyond ninety (90) days, unless otherwise agreed, Purchaser’s orders placed from time to time hereunder shall be for such quantities and/or shipping dates as will permit the shipment of approximately equal aggregate quantities of product in each ninety (90) day period. Purchaser shall give FiberTech Optica reasonable advance notice for each shipment and Purchaser and FiberTech Optica shall be agree on a reasonable shipment schedule.
- General: These terms and conditions, together with the order and other material set forth on the other side of this form, set forth the entire understanding of the parties with respect to the subject matter hereof, and supersede and replace all prior discussions, writings or understanding between the parties on such subject matter. However, these terms and conditions and such order and other material may be changed or terminated only by a writing signed by both parties. No written purchase order shall affect or vary these terms and conditions. These terms and conditions are accepted by Purchaser if Purchaser either does not object within five business days or accepts delivery of products from FiberTech Optica, whichever is earlier. Failure of either party to insist on strict compliance with any provision hereof or to exercise any right hereunder, shall not constitute a waiver of such provision or right in any other instances. Section headings are for convenience or reference only and shall not have any affect upon the interpretation of these terms and conditions. Neither Purchaser nor FiberTech Optica may assign any rights or obligations under these terms and conditions or upon order or other material with the other’s prior written consent, and any such attempted assignment shall be void. These terms and conditions, such order and such material shall be governed by and conserved in accordance with the law of the Province of Ontario.