VERTEX OPTICS, INC.
TERMS & CONDITIONS – ALL SALES
All quotations[LC1] issued by Vertex Optics, Inc. (hereinafter referred to, as “Vertex”) shall be considered offers by Vertex to sell the services and or goods described therein (collectively, “Product” or “Products”) to the purchaser of such Products (“Customer”).
1. ACCEPTANCE OF TERMS OF SUPPLY:These terms and conditions shall control all sales of Products by Vertex, unless otherwise specifically agreed upon to the contrary, in a separate written document executed by Vertex. Vertex will not be bound by any terms of Customer’s purchase orders, requests for proposals or terms and conditions that are inconsistent with the terms herein, unless otherwise specifically agreed upon to the contrary, in a separate written document executed by Vertex. All purchase orders issued to Vertex by Customer shall be subject to and governed only by these terms and conditions notwithstanding any preprinted or other terms and conditions on Customer’s purchase order, or terms incorporated therein and any contradictory terms and conditions on Customer’s purchase documents are deemed to be material alterations hereto, for which notice of objection is hereby given by Vertex. Customer’s acceptance of the quote or placement of a purchase order constitutes Customer’s acceptance of these terms and conditions, all of which are incorporated by reference therein. Notwithstanding any provision to the contrary, no purchase order shall be binding upon Vertex until accepted by Vertex in writing, and Vertex shall have no liability to Customer with respect to purchase orders that are not accepted.
2. PRICE & PAYMENT TERMS:Prices for Products shall be Vertex’s quoted prices for the quantities specified in such quote or accepted purchase order (“Purchase Price”); however, a quotation or estimate does not constitute a firm offer by Vertex and may be altered or withdrawn without notice at any time prior to Vertex’s acceptance of a purchase order related thereto from Customer. Vertex reserves the right to revise a Purchase Price upon written notice to Customer. Price revisions will apply to all purchase orders received after the effective date of the price revision. Unless otherwise specified in any written agreement to the contrary, prices are F.O.B Vertex’s facility in Ontario County, New York. Customer shall be responsible for, in addition to the Purchase Price, any and all sales, use, value added, excise, and/or other taxes payable by reason of the sale of the Products, together with any interest and penalties thereon. Customer shall reimburse Vertex for any such taxes, including interest and penalties thereon, as may be paid by Vertex, together with any expenses connected therewith.
Payment terms shall be net 15 [LC2] days from the date of Vertex’s invoice. Customer will make payments in US dollars by check, wire transfer, letter of credit, or other acceptable payment method as agreed to by Vertex. Any invoice amount not paid when due shall be subject to a service charge equal to the lesser of 1.5% per month or the maximum rate permitted by law and Customer shall pay Vertex’s reasonable attorneys’ fees and other collection costs of collecting overdue invoices. Vertex may transmit invoices by facsimile, e-mail or other electronic means.
3. INSPECTION AND ACCEPTANCE: Customer shall examine all Products upon receipt and prior to installation. All claims for damage, shortage, and errors in shipment or improper delivery must be made in writing within 5 business days of delivery to Vertex’s accounts receivable department at joon@vertexoptics.com or 90Victor Heights Parkway Victor, N.Y. 14564 after which date Customer will be deemed to have accepted the Products and will have no right to reject the Products or to revoke acceptance[LC3] . Customer must make any claims for billing errors or adjustments in writing within 10 business days from the invoice date to Vertex’s accounts receivable department at the address set forth above. Claims not received in writing within such period will be waived by Customer.
4. DELIVERY & SHIPMENT:Products held beyond scheduled shipment date at Customer’s request are subject to reasonable storage and incidental charges. Methods and routes of shipment, unless specified by Customer and made part of the quote, will be accepted as chosen by Vertex. All orders are shipped F.O.B. point of shipment. Risk of loss will transfer to Customer upon tender of Products to Customer. If Customer or the carrier refuses delivery or delay shipment or acceptance, the Products may be stored according to Vertex’s direction, as Customer’s agent, at Customer’s risk and expense. During any such storage, Customer will bear the risk of loss. All costs subsequent to delivery, including but not limited to the cost of shipment and installation of the Products described herein, will be borne by Customer unless otherwise specifically agreed in writing by the parties. Delivery dates provided by Vertex are estimates only and are not guaranteed. Vertex will make a reasonable effort to deliver Products in accordance with Customer’s schedule. Time is not of the essence. Under no circumstances will Vertex be liable for any special, consequential, indirect, incidental, or liquidated damages, losses, or expenses of any kind arising from any shipping delays or failure to give notice of any shipping delays.
5. SUSPENSION OF WORK & CANCELLATION:Upon receipt of payment in full for all completed work to date, Customer may, by written notice, suspend all or part of the work to be performed under any accepted Purchase Order for a period not to exceed 90 days[LC4] . Vertex shall resume work whenever a suspension is canceled. If any suspension of work causes an increase or decrease in the cost of or the time required for performance, an equitable adjustment shall be made in price or delivery schedule or both, and the Purchase Order shall be modified in writing accordingly. Vertex shall invoice Customer in the amount Vertex identifies as the additional cost resulting from the change, and Customer shall pay such invoice in accordance with the net payment terms identified herein. Vertex shall submit its fully supported request for equitable adjustment, no later than 60 days, or such other time as Customer may allow, after the suspension is canceled.
No contract between Vertex and the Customer is subject to cancellation by Customer without Vertex’s written consent. Such consent will be granted, if at all, only upon the condition that Customer pay Vertex reasonable cancellation charges determined by Vertex, including but not limited to all costs incurred by Vertex to the date of cancellation, and all overhead, profit and other expenses. Any cancellation or rescission by Customer shall constitute a discharge of any claim by Customer relating to this transaction.
6. CHANGE ORDERS: Customer may from time to time, in writing, request changes within the general scope of any previously accepted Purchase Order in any one or more of the following: (i) technical requirements and descriptions, specifications, drawing or designs; (ii) shipment or packing methods; (iii) place of delivery or inspection; or (iv) reasonable adjustments in quantities or delivery schedules or both. Vertex and Customer shall communicate regarding implementation of the requested changes and any related change to the cost of the Product, as well as any impact on the delivery schedule. If any such change causes an increase in the cost of or the time required for performance of the Purchase Order, equitable adjustment in the prices and schedules shall be made to reflect such increase and the Purchase Order shall be modified in writing accordingly (“Change Order Adjustment”). Pending mutual agreement of the Parties as to the Change Order Adjustments to the prices and/or schedules, Vertex shall take no action to implement any such change. Vertex reserves the right to suspend work while any Change Order Adjustment is pending.
Any added expenses incurred by Vertex because of delays in receipt of details, specifications, approvals, Customer inspections and other pertinent information, or because of changes in material or design requested by Customer, shall be chargeable to Customer. If Vertex considers that Customer’s conduct has constituted a change hereunder, Vertex shall promptly notify Customer in writing as to the nature of such conduct, its effect upon Vertex’s performance and the terms of the Change Order Adjustment necessitated by such conduct.
7. LIMITED WARRANTY[LC5] : Vertex warrants that: (i) any services rendered hereunder will be performed in a professional and workmanlike manner in accordance with applicable law and industry standards applicable to the services; and (ii) the services will conform to the specifications for the services set forth on the quotation or invoice. Vertex further warrants that at the time of acceptance, any goods provided hereunder will function in all material respects in substantial compliance with Customer’s specifications for the goods and that the goods will be shipped free from material defects in materials and workmanship for 1 year from the date of acceptance[LC6] . Except for Vertex’s limited warranty set forth in this Section 7, Vertex does not provide any other warranties of any kind with respect to the Products, either express or implied by statute, usage, custom of trade, or otherwise, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose.
THE EXPRESSED WARRANTIES LISTED ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, INCLUDING ANY EXPRESSED ORAL REPRESENTATIONS REGARDING THE PRODUCT(S), ANY EXPRESSED WRITTEN WARRANTY NOT CONTAINED HEREIN OR CONTAINED IN ANY TERM OR CONDITION IN ANY CUSTOMER DOCUMENT OR CONTRACT INCLUDING ANY CUSTOMER END USER CONTRACT, AND ANY IMPLIED WARRANTY INCLUDING WARRANTIES AS TO CONDITION, DESCRIPTION, FITNESS FOR A PARTICULAR PURPOSE, AND MERCHANTABILITY. VERTEX DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY: IN NO EVENT SHALL VERTEX BE LIABLE TO THE CUSTOMER FOR ANY CAUSE OF ACTION, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BROUGHT BY THE CUSTOMER AGAINST VERTEX, OR BROUGHT BY A THIRD PARTY AGAINST CUSTOMER, ARISING OUT OF THE PURCHASE, OR SUBSEQUENT USE, OF THE PRODUCT, FOR DAMAGES, ATTORNEY FEES, OR COURT COSTS THAT EXCEED THE PURCHASE PRICE OF THE PRODUCT ACTUALLY RECEIVED BY VERTEX FROM THE CUSTOMER. IN NO EVENT SHALL VERTEX BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES ARISING, DIRECTLY OR INDIRECTLY, FROM THE PURCHASE, SUBSEQUENT USE, OR RESALE OF THE PRODUCT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL VERTEX BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER FOR BREACH OF CONTRACT OR WARRANTY OR TORT (INCLUDING NEGLIGENCE) OR THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED FOR HEREIN
9. APPLICABLE LAW AND CHOICE OF FORUM: This Agreement will be governed by and interpreted in accordance with the laws of the State of New York, without giving effect to its provisions regarding conflicts of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded in its entirety. The Federal and State courts located in Monroe County, New York will have exclusive jurisdiction and venue over any dispute arising out of any agreement between Vertex and Customer, and Customer hereby consents to the jurisdiction of such courts.
10. OWNERSHIP: Vertex retains all intellectual rights in and to all designs, engineering details, and other technology and information pertaining to the Products in any format or media (“Intellectual Property”). The Products are offered for sale and are sold by Vertex subject in every case to the condition that such sale does not convey any license, expressly or by implication, to manufacture, duplicate, or otherwise copy the Products or any Intellectual Property related thereto. The Products are offered and sold to the Customer on the condition that such sale does not convey any license, expressly or by implication, estoppel, or otherwise, under any patent, trademark, copyright or know-how with respect to which Customer can grant licenses.
11. CONFIDENTIALITY: Prior to submission of any quote or response to any request for proposal, the parties shall have entered in a non-disclosure agreement, the terms of which are mutually acceptable to the parties (“Non-Disclosure Agreement”). The terms of such executed Non-Disclosure Agreement are incorporated into this provision as if fully set forth herein. [LC7]
12. NOTICE: Any notice required or permitted to be given will be in writing and will be prepaid, and may be personally served, sent by an overnight delivery service, or by first-class mail. Any such notice will be deemed to have been given: (i) if personally given, or sent by a delivery service, when received, (ii) if mailed, 3 business days after deposit in the US mail with a correct address.
13. WAIVER: The failure or delay of either of the undersigned to insist on strict compliance with any of the terms, covenants or conditions of these Terms and Conditions shall not be deemed a waiver of that term, covenant or condition, or a waiver of any other term, covenant or condition; nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or for any other times.
14. ENTIRE AGREEMENT: These Terms and Conditions constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all previous communications, written or oral, with respect to the subject matter, and no representations or statements of any kind made by any representative of Vertex that are not stated herein will be binding on Vertex. No course of dealing or usage of trade or course of performance will be relevant to explain or supplement any of these terms. If the parties have entered into a separate written agreement, signed by the parties, setting forth terms and conditions for the sale of Product to Customer by Vertex, then the terms of such agreement shall control to the extent such terms and conditions are contrary to the terms herein.