FOGPhotonics,inc

Terms and Conditions of Sale

Effective October 1, 2014

1. Agreement

a. Except as may be expressly stated otherwise inthe final offer, final quote or other final proposal submitted to Buyer by Sellerin writing, by fax or by email ("Final Proposal"), these Terms and Conditions shall apply with respect to the supply of all products and components and parts therefor ("Products") and/or the provision ofall services ("Services") by or through any FOGPhotonics Unit("Seller") to (i) any person or entity to whom these Terms & Conditions are furnished or made available with an offer, quote or proposal submitted by Seller, through Seller's website, or otherwise and (ii) any personor entity affiliated with any person or entity to whom these Terms &Conditions are furnished or made available (collectively, "Buyer").The Final Proposal and these Terms and Conditions together shall constitute the full, complete and final agreement and understanding between Buyer and Seller with respect to the supply of Products and/or the provision of Services by or through Seller. These Terms and Conditions together with the Final Proposal constitute the "Agreement", provided, however, that to the extentthere is any conflict between these Terms and Conditions and the Final Proposal, the provisions of the Final Proposal shall control over the provisions of these Terms and Conditions. All Products supplied and all Services provided by or through Seller will be deemed to be supplied and provided solely upon and subject to the provisions of the Agreement, unless Buyer and Seller have negotiated and signed a separate formal written agreement for the supply of Products and/or the provision of Services that specifically refers to the Agreement and expressly states that it controls over the Agreement (an "Other Agreement"), in which event, if there should beany conflict between such Other Agreement and the Agreement, the provisions of such Other Agreement will control, but solely with respect to the particular Products supplied and/or the particular Services provided under such Other Agreement.

b. Seller objects to and rejects any provisionsof any documentation submitted by or on behalf of Buyer, including but notlimited to, any request for proposal, statement of work, purchase order, termsand conditions, release or shipping documents ("Buyer Documentation"), that differ from the provisions of the Agreement. No acknowledgement or acceptance by Seller of any Buyer Documentation shall createan Other Agreement or otherwise constitute acceptance of or agreement to any provisions of any Buyer Documentation that differ from the provisions of the Agreement. Seller's acknowledgment of Buyer Documentation shall merely constitute an acknowledgement of Seller's receipt of such Buyer Documentation and Seller's acceptance of Buyer Documentation shall merely constitute an acknowledgement of the particular Products and/or Services ordered by Buyer,the dates requested by Buyer for shipment or delivery of such Products and/or performance of such Services, the instructions of Buyer for shipment of such Products, and/or the price to be paid for such Products and/or Services, ineach case, (i) only to the extent consistent with the provisions of the Agreementand (ii) without constituting acceptance of or agreement to any terms or conditions set forth or referenced in such purchase order that differ from the provisions of the Agreement.

c. The Agreement may be amended, modified orsuperseded only in a written instrument signed by Buyer and Seller that specifically refers to the Agreement and expressly states that it amends the Agreement.

2. Orders and Releases

Once accepted by Seller, an order or release from Buyer for Products or Services may be suspended, delayed or cancelled by Buyer only with the written approval of Seller. Seller may impose cancellation andother charges in connection with the suspension, delay or cancellation of an order or release for Products and Services, and, in addition to any otherrights and remedies, may require that Buyer (i) purchase from Seller any andall completed custom or non-standard Products produced for such order orrelease, and any quantities of other completed Products produced for such orderor release that exceed the quantities of such other Products that can bereadily sold by Seller to third parties, and (ii) reimburse Seller for its inventory cost of any and all work-in-process, materials, components or parts for such order or release that cannot be readily used or reworked for other products that can be readily sold by Seller to third parties, any reworkingcosts related to reworking work-in-process, materials, components or parts for such order or release, and any cancellation and other charges payable tosuppliers of materials, components or parts for such order or release.

3. Price and Surcharges

The prices and surcharges for Products and Services shall be the relevant prices and surcharges set forth in or determined in accordance with the Final Proposal. Unless stated otherwise in the Final Proposal, all prices are FCA (Incoterms 2010) Seller's facility, and all prices are net prices to Seller and do not include any freight, shipping, special packaging or handling, insurance, or taxes, levies, duties, tariffs, customs orother fees or charges of any nature imposed by any governmental authority, allof which (including any related withholding) will be the sole responsibility of and be required to be paid by Buyer. In the event Seller pays any freight, shipping,special packaging or handling, insurance, or taxes, levies, duties, tariffs,customs or other fees or charges that are the responsibility of Buyer, Sellermay invoice Buyer therefor. Buyer's refusal or inability to accept or take delivery of Products shall not excuse Buyer from making payment for Products.

4. Payment Terms

Seller may invoice Buyer for Products uponshipment, and Seller may invoice Buyer for Services upon performance; provided,however, that (i) if Buyer requests a delay in shipment of Products, Seller may invoice Buyer for such Products prior to shipment, and (ii) if Buyer requests a delay in performance of Services, Seller may invoice Buyer for or such Servicesprior to performance. Unless provided otherwise in the Final Proposal, all payments must be made to Seller in the same currency as the relevant prices. If payment terms are stated in a Final Proposal, the payment terms for Products and Services shall be the payment terms stated in the Final Proposal. If payment terms are not stated in a Final Proposal, the payment terms for Products and Services shall be net thirty (30) days after date of invoice.Whether or not payment terms are stated in a final Proposal, Seller reservesthe right, in its sole discretion, to require payment for Products in advanceof production, in advance of shipment (e.g., C.I.A.), or upon delivery (e.g.,C.O.D.) and to require payment for Services in advance of performance, if and whenever the account of Buyer or any of its affiliated entities with Seller orany of its affiliated entities is not current or Seller feels insecureconcerning its receipt of payment. Payments by wire transfer shall be made inaccordance with the wire transfer instructions set forth in Seller's invoice.Payments by check shall be sent to the payment location specified in Seller'sinvoice and otherwise be made in accordance with the payment instructions setforth in Seller's invoice. Each shipment of Products shall be considered aseparate and independent transaction for which Buyer must make payment. If anyamount payable to Seller by Buyer is not paid when due, Seller shall been titled to recover from Buyer all attorneys fees and other costs and expensesit may incur in seeking to collect such past due amount and shall have the rightto impose on Buyer a late charge on the past due amount from the date due untilpaid at the rate of 2% per month or, if less, the highest rate permitted bylaw. Seller may pursue a collection action against Buyer in any court of competent jurisdiction to collect any past due amount.

5. Security for Payment

To secure the due and punctual payment of theprice for Products and Services and other amounts payable to Seller by Buyer,Seller shall have and retain, and Buyer grants to Seller, a first lien and securityinterest in all Products, in all Other Products (as defined in Paragraph 9(Other Products) below), and in all proceeds in respect of Products and Other Products. If the price for any Products or Services or any other amount payableto Seller by Buyer is not paid when due, Seller shall have and may exercise anyand all rights and remedies of a secured party under Applicable Law and any and all other rights and remedies it may have by contract, at law or in equity. Inaddition to the rights and remedies it may have under Applicable Law orotherwise have by contract, at law or in equity, Seller shall have the right to with hold shipment of Products, to recall and retake Products, to repossess Products, to take possession of Other Products, and to direct Buyer's customersto make payment directly to Seller for Products and Other Products, all withoutnotice to Buyer and without initiating any legal proceedings. Seller shall havethe right to execute such documents, make such filings and take such other actionsin its own name and/or in the name of Buyer and to require Buyer to make suchfilings, execute such documents and take such other actions, as Seller may deemnecessary or appropriate from time to time to evidence and confirm its firstlien and security interest and exercise its rights and remedies as a securedparty.

6. Shipment, Delivery, and Performance

Seller will ship Products to the address andendeavor to use the carrier specified by Buyer in the relevant Buyer Documentation. If any export approvals, authorizations licenses or permits are required in respect of any Products or Services, Seller shall not be requiredto ship such Products or perform such Services unless and until all suchrequired export approvals, authorizations licenses and permits have been obtained. If the relevant Buyer Documentation specifies "commoncarrier" or no carrier is specified, the Products will be shipped via such means as Seller selects in its sole discretion. All quoted, proposed, agreedand scheduled shipment, delivery and performance dates are merely estimates,and Seller shall have no liability or responsibility for any penalties ordamages in connection with late shipment or delivery of Products or late performance of Services. Shipments and deliveries of Products and performance of Services may be made in installments in Seller's sole discretion. Title and all risk of loss or damage to each Product shall pass to Buyer upon deposit ofsuch Product with the carrier for shipment, and Seller shall have no liabilityor responsibility for any loss or damage to a Product after such Product is deposited with the carrier for shipment. If Buyer requests a delay in shipmentof Products, Seller may impose storage and handling charges in connection withthe delay. Any claim that the wrong Product or the wrong quantity of Productwas shipped must be asserted within 30 days of the date of shipment, and,unless written notice of a wrong Product or a wrong quantity of Product isreceived by Seller within 30 days after the date of shipment, Buyer shall bebarred from asserting any claim for wrong Product or wrong quantity of Productin connection with a shipment.

7. Software

To the extent that any Product or Serviceincludes software in any form, including firmware ("Software"), suchsoftware is not sold to Buyer or its customers, but is only licensed on alimited, non-exclusive basis in the form delivered by Seller for use by Buyerand its customers with such Products or Services. In the case of Software, allreferences in these Terms and Conditions or any offer, quote or other proposalto "sell," "purchase" or the like will be deemed to mean alicense to use such Software as provided in this Paragraph 7. Buyer shall not,and Buyer shall take reasonable measures to ensure that its customers do not,duplicate, distribute, modify, reverse-engineer or derive the source code forany Software, remove any copyright or other notices from any Software, or useany Software in any way except as authorized by Seller.

8. Prototypes, Drawings, Etc.

As between Buyer and its customers, on the onehand, and Seller and other FOGPhotonics Units, on the other hand, Seller and/oranother FOGPhotonics Unit shall own and retain all right, title and interest inand to all prototypes, drawings, schematics, designs, specifications, samples,molds and other tooling, and technical documentation that may be prepared,created or provided wholly or partially by Seller and/or another FOGPhotonics Unit in connection with any Products or Services ("Prototypes, Drawings,Etc."), not withstanding any suggestion or other contribution that Buyer orany of its customers may make relative to improvements in, or changes withrespect to, such Prototypes, Drawings, Etc. Prototypes, Drawings, Etc, may beused only for Products supplied by Seller and/or another FOGPhotonics Unit andServices provided by Seller and/or another FOGPhotonics Unit and only asauthorized by Seller and/or another FOGPhotonics Unit, and Buyer shall not, andBuyer shall take reasonable measures to ensure that its customers do not,attempt to use Prototypes, Drawings, Etc. other than for Products supplied bySeller and/or another FOGPhotonics Unit and Services provided by Seller and/or another FOGPhotonics Unit or in any other manner attempt to misuse or misappropriate any Prototypes, Drawings, Etc..

9. Other Products

In the event that any Product is incorporated orinstalled in, or combined with, another product, material, component or part("Other Product"): (i) Seller shall have no risk, liability, obligationor responsibility of any kind with respect to such Other Product, and (ii)Buyer shall be solely liable, obligated and responsible for all Other Productsin which it may incorporate or install, have a third party incorporate orinstall, or authorize a third party to incorporate or install any Productsand/or with which it may combine, have a third party combine, or authorize athird party to combine any Products.

10. Limited Warranty - Products

b. In the event of a breach of the warranty setforth in subparagraph a above, Buyer must notify Seller thereof within thewarranty period for such Product. Unless Buyer notifies Seller of a breach ofthe warranty set forth in subparagraph a above within the warranty period for a Product, Seller shall have no liability or obligation with respect to a breach of the warranty set forth in subparagraph a above.

c. If a warranty period is stated in a FinalProposal, the warranty period for a Product shall be the warranty period stated in the Final Proposal. If a warranty period is not stated in a Final Proposal,the warranty period for a Product shall be as follows:

The warranty period for all Products commences on the date the Product is deposited by Seller with the carrier for shipment.

d. Buyer's sole and exclusive right and remedy,and Seller's sole and exclusive liability and obligation, for a breach of the warranty set forth in subparagraph a above shall be that Seller will eitherrepair or replace the relevant Product or refund or credit to Buyer the price Buyer paid therefor.  Seller reserves theright to use reconditioned parts for warranty repairs and to use reconditioned Products for warranty replacements. The decision whether to repair, replace,refund or credit or to use reconditioned parts or Products shall be made by Seller in its sole discretion. Repaired Product and replacement Product shallbe warranted only for the remainder of the original warranty period.

e. Seller shall have the right to require that aProduct that is the subject of a warranty claim be returned to Seller or another FOGPhotonics Unit for inspection and evaluation. In returning Products,Buyer shall comply with Seller's Return Goods Policy (See Paragraph 13(Returns) below).

f. The warranty set forth in subparagraph a abovewill not apply, and Buyer shall have no right or remedy and Seller shall have no liability or obligation under the warranty set forth in subparagraph a above, if: (i) a Product is altered, changed, modified or tampered with in anyway, other than an alteration, change or modification made by or with the authorization of Seller; (ii) a Product is damaged after deposit with the carrier for shipment; (iii) a Product is not properly preserved, packaged, stored,processed or handled after receipt (In the case of a Product that is staticsensitive and capable of being degraded, damaged, or destroyed by electrostatic charges or discharges, the following EDS requirements apply: (A) such Productmust be preserved, packaged, and stored in a manner that prevents exposure tothe generation or discharge of electrostatic voltages; and (B) such Product must be processed and handled in accordance with IEC 61340-5-1 Ed.1.0b:2007   Electrostatics - Part 5-1.);(iv) a Product is not used and maintained in accordance with Seller'srecommended operating and maintenance manuals, instructions and procedures, if any; (v) a Product is not properly incorporated or installed in, or notproperly combined with, an Other Product; (vi) the issue with a Product isdirectly or indirectly attributable to, or directly or indirectly results fromor arises out of, a failure, substandard performance or other issue with another product, material, component or part not supplied by Seller or another FOGPhotonics Unit, including but not limited to, a product, material, component or partsupplied by Buyer or from a source directed by Buyer; (vii) the issue with aProduct is directly or indirectly attributable to, or directly or indirectlyresults from or arises out of, compliance with any design, specification orother specific requirement of Buyer; (viii) a Product is used in a manner, with a substance or for a purpose other than the normal manner, substance and purpose for which it is intended or is otherwise subjected to abnormal use orservice; (ix) a Product is subjected to a power surge, brown out or other similar occurrence; (x) the issue with a Product is directly or indirectly attributable to, or directly or indirectly results from or arises out of,normal wear and tear of such Product; (xi) the issue with a Product is directlyor indirectly attributable to, or directly or indirectly results from or arisesout of, reagents or other substances used in or with such Product (including,without limitation, things such as damage due to corrosive or insolublesubstances, etc.); (xii) a Product is used for a purpose or application for which it is unfit, unsuitable or inappropriate  (whether or not a particular use or application for a Product is identified, Buyer shall be solely responsible for determining the fitness, suitability and appropriateness of Products for the purposes and applications for which they are used by Buyer and its customers);or (xiii) the issue with a Product is directly or indirectly attributable to,or directly or indirectly results from or arises out of, a changes in safety,health or other governmental or regulatory standards, mandates or other requirements after the date of manufacture of such Product.

11. Limited Warranty - Services

b. In the event of a breach of the warranty setforth in subparagraph a above, Buyer must notify Seller thereof within a periodof 30 days after the relevant Services are performed. Unless Buyer notifies Seller of a breach of the warranty set forth in subparagraph a above within theperiod set forth in this subparagraph b, Seller shall have no liability orobligation with respect to such breach.

c. Buyer's sole and exclusive right and remedy,and Seller's sole and exclusive liability and obligation, for a breach of the warranty set forth in subparagraph a above shall be that Seller will eitherreperform the relevant Services to the extent not properly performed or refundor credit to Buyer the price Buyer paid therefor. The decision whether toreperform, refund or credit shall be made by Seller in its sole discretion. Anyreperformed Services shall be warranted as set forth above.

d. The warranty set forth in subparagraph a abovewill not apply, and Buyer shall have no right or remedy and Seller shall have no liability or obligation under the warranty set forth in subparagraph aabove, if a failure to properly perform Services is directly or indirectly attributable to, or directly or indirectly results from or arises out of (i)compliance with any directions, instructions or requirements of Buyer, or (ii)any action, inaction, error or omission of Buyer or any other person or entityother than Seller and its employees and agents.

12. Trademarks

Products may contain one or more trademarks of Seller and/or another FOGPhotonics Unit ("Trademarks"). Buyer shall have a non-exclusive, revocable license to use Trademarks in referring to Products in manuals, instructions, procedures and other related documents andmaterials and in promotional and marketing documents and materials pertainingto such Products and/or to Other Products in which such Products areincorporated or installed, or with which such Products are combined; provided,however, that Buyer shall (i) not alter or modify any Trademark, (ii) affix the appropriate trademark symbol (™ or ®) to the most prominent usage of eachTrademark in all documents and materials, (iii) attribute ownership of eachTrademark to Seller and/or another FOGPhotonics Unit as directed by Seller inall documents and materials, (iv) notify Seller in advance of each proposed use of a Trademark, and (v) if requested by Seller, allow Seller to review andapprove in advance each proposed specific use of a Trademark. As between Buyerand its customers, on the one hand, and Seller and the other FOGPhotonics Units, on the other hand, all use of Trademarks shall insure solely to thebenefit of Seller and/or another FOGPhotonics Unit. Buyer and its customersshall use Trademarks only as authorized by Seller and/or another FOGPhotonics Unit, and Buyer shall not, and Buyer shall take reasonable measures to ensure that its customers do not, do any thing or take any action that could reduce,diminish or impair the right, title and interest of Seller or any other FOGPhotonics Unit in and to any Trademark.

13. Returns

Seller may from time to time, in its solediscretion, authorize or require that Products be returned to it. All such returns shall be subject to such conditions as Seller may specify. All such returns shall be subject to and must be in compliance with Seller's Return Goods Policy as in effect at the time of the return. Among other conditions for return of Products for any reason, Seller may require that (i) a Return Goods Authorization (RGA) be obtained from Seller prior to the return, (ii) Buyer orits customer pay all freight and shipping in connection with the return, (iii)Buyer or its customer bear all risk of loss or damage during shipment, (iv) no Product be returned unless and until it has been flushed clean of chemicals,solvents and buffers, (v) no Product be returned if such Product or any Other Product in which it is incorporated or installed or with which it is combinedhas been used in connection with any hazardous, corrosive or radioactive substances, and (vi) Buyer and/or its customer certify compliance with therequirements of clauses (iv) and (v) above. Among other conditions for thereturn of Products for credit, Seller may require that (i) the returned Products be products that Seller currently offers for sale as a standard Product, be in new, unused and undamaged condition, be returned in the original packaging, and be returned in a complete condition with all accessories,manuals and other documentation, and (ii) Buyer pay a restocking charge. Customand non-standard Products may not be returned for credit.

14. Employees, Agents, Etc.

No employee, agent, distributor or representativeof Seller or any other FOGPhotonics Unit has the right or power to modify orexpand any of the warranties, liabilities, obligations, rights or remedies setforth in Paragraphs 10 (Limited Warranty - Products) and 11 (Limited Warranty -Services) above or to make or enter into any other warranty, representation,agreement or commitment in the name or on behalf of Seller and/or another FOGPhotonics Unit with respect to any Products or Services, beyond or in addition to theexpress warranties, representations, agreements and commitments set forth in the Agreement. Any such modification, expansion, warranty, representation,agreement or warranty, if made, should not be relied upon by Buyer or itscustomers and shall not be binding upon or enforceable against Seller or anyother FOGPhotonics Unit.

15. Relationship of the Parties

Buyer and Seller shall be independent contractorswith respect to all Products and Services, and nothing contained in the Agreement is intended to or shall be deemed to create any partnership, jointventure, principal agent, employer-employee or other similar arrangement orrelationship between Buyer and Seller. Neither Buyer nor Seller shall be responsible for any act or omission of the other party, and neither Buyer nor Seller shall have any power or authority to speak for, represent or obligatethe other party in any way.

16. Waiver

No failure to exercise and no delay in exercisingany right, remedy, or power under or in respect of the Agreement shall operateas a waiver thereof, and no single or partial exercise of any right, remedy orpower under or in respect of the Agreement shall limit or preclude any other orfurther exercise thereof or the exercise of any other right, remedy, or powerunder or in respect of the Agreement.

17. Applicable Law

b. Applicable Law shall depend upon theparticular FOGPhotonics Unit that is Seller:

c. The United Nations Convention on Contracts forthe International Sale of Goods shall not apply.

18. Export 

If and to the extent Products and related technical information, data, documents and materials are subject to Chinese goverment and/or Korean export controls and/or trade embargoes, Buyer shall strictly comply with all such export controls and trade embargoes, shall fully cooperate with Seller and any other FOGPhotonics Company in any official orunofficial investigation, audit or inspection that relates to any of such export controls or trade embargoes, and shall not export, re-export, divert ortransfer, directly or indirectly, any Products or related technical information, data, documents or materials to any party on any applicable deniedparty list or destination subject to an embargo or for any use that is otherwise prohibited pursuant to such export controls and/or trade embargoes,unless and until Buyer obtains any and all required Chinese Commercial government and/or Korean governmental and regulatory approvals, authorizations, licenses andpermits. If requested by Buyer, Seller shall provide Buyer with the following information relating to Products: (i) the appropriate ECCN numbers appearing inthe Export Administration Regulations administered by the HK. Department of Commerce, and (ii) the appropriate commodity numbers appearing in the currentedition of the Bureau of the Census publication, Schedule B, StatisticalClassification of Domestic and Foreign Commodities Exported from the Korea(Schedule B numbers).

19. Indemnity by Buyer

Buyer shall defend, indemnify, and hold Sellerand the other FOGPhotonics Units harmless from and against any and allliability, judgment, loss, damages, costs, and expenses (including but notlimited to attorneys' and experts' fees) which any of them may hereafter sufferor pay out to a third party by reason of any claim, action, or right of actionof a third party, at law or in equity, to the extent that any such claim,action, or right of action arises out of or relates to (i) Buyer's breach of 14 (Trademarks) or 18 (Export)above, (ii) Other Products, (iii) High Risk Applications, or (iv) compliancewith any design, specification or requirement of Buyer.

 

20. Interim Relief

Seller shall have the right to seek and obtainfrom any court of competent jurisdiction a temporary restraining order and/orpreliminary injunction to enjoin Buyer from violating or breaching Paragraph 7(Software), 14 (Trademarks) or 18 (Export)above.

21. Force Majeure

Seller shall have no liability for any failure toperform, or for any delay in performance, to the extent caused by circumstances beyond its reasonable control, including but not limited to, the elements, acts of God, acts of nature, acts of Buyer or third parties, floods, fire, energy shortages or interruptions, communication delays and interruptions,earthquakes, explosions, war or military mobilization, armed hostilities,riots, terrorism, governmental action or inaction, request of governmental authority, shortages of, delays in obtaining, or inability to obtain materials,components or parts, transportation shortages, delays and interruptions,interruption in electricity or other utilities, epidemic or widespread illnessor disease, and strikes, lockouts, labor disturbances or other differences with workers.

22. Severability

If any provision of the Agreement is held to beillegal, invalid, void or in any way unenforceable, such provision will be limited or eliminated to the extent, and only to the extent necessary, for theAgreement to otherwise remain in full force and effect, legal, valid and enforceable.

23. Assignment

Neither the Agreement nor any right, liability orobligation under or in respect of the Agreement may be assigned by Buyer orSeller, whether voluntarily, by operation of law or otherwise, without theother party's written consent, and any such assignment that is attempted without such consent shall be null and void; provided, however, that no suchconsent shall be required for (i) any assignment by Buyer or Seller to asuccessor to all or substantially all of the business and assets of such partyor (ii) any assignment by Seller to another FOGPhotonics Unit.