Terms & Conditions

OMEGA OPTICAL HOLDINGS, LLC

TERMS AND CONDITIONS OF SALE

1. SCOPE AND ACCEPTANCE. These terms and conditions together with any other terms and conditions specifically agreed upon in writing (the “Terms and Conditions”) by Seller (as defined below), shall apply to all purchase orders (“Purchase Order(s)”), together with these Terms and Conditions, this “Agreement”) for any sale of products (the “Products”) and/or services (the “Services”) to the purchaser referenced in the Purchase Order (“Buyer”) (Buyer and Seller, each individually a “Party”, and together the “Parties”). ANY ACCEPTANCE OF A PURCHASE ORDER BY BUYER IS CONDITIONED UPON ACCEPTANCE OF THESE TERMS AND CONDITIONS. ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS PROPOSED BY BUYER IN ANY DOCUMENT ARE HEREBY REJECTED BY SELLER AND SHALL NOT BE BINDING UPON SELLER UNLESS OTHERWISE AGREED IN WRITING. NO SALESPERSON IS AUTHORIZED TO BIND SELLER TO ANY PROMISE OR UNDERSTANDING NOT EXPRESSED IN THESE TERMS AND CONDITIONS.

Seller entities may include the following: Omega Optical, LLC; Optometrics Corporation; Evaporated Metal Films Corp. dba EMF Corp; and Spectral Systems, LLC (each individually a “Seller” and together, the “Sellers”).

2. PRICES. All prices set forth in an applicable Purchase Order are subject to change without notice in the event of any changes to the cost of materials or labor, specifications, quantities, delivery schedules, customs duties, or other factors beyond Seller’s control, or in the event of delays caused by instructions from the Buyer, or failure of the Buyer to provide adequate information to Seller within required time periods. Further, prices payable by Buyer shall be subject to immediate increase, should the Seller, as a result of governmental action or regulation, including, without limitation, action contemplated by an investigation under Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. §1862), incur additional duties, tariffs or restrictions on the Products, or on the raw materials that are used in making the Products. In no event shall prices include any amounts imposed on the Buyer in connection with Buyer’s purchases from Seller, such as taxes, including but not limited to Value Added Tax (“VAT”) or excise taxes, duties, tariffs, or any other costs assessed against the Buyer by a governmental authority.

3. DELIVERY. Delivery dates are approximate and are dependent upon prompt receipt by Seller of all necessary information from Buyer. Seller may deliver or perform all or any part of the Products and/or Services as early as 30 days in advance of the agreed upon scheduled due dates set forth in this Agreement. The place of delivery of the Products shall be “Ex-works” ((“EXW”) or “Free Carrier”) FCA Seller’s premises, unless otherwise specified by Seller or set forth in the applicable Purchase Order. Upon delivery, title to the Products and all risk of loss or damage thereto shall pass to Buyer. If Buyer notifies Seller that it cannot take timely delivery of the Products, Seller may place such Products in storage (at which point title to the Products shall pass to Buyer), at the risk and expense of Buyer, and Buyer shall reimburse Seller for all expenses incurred in connection with such storage. Buyer shall dispose of the packing materials for Products at its own expense, and shall defend, indemnify and hold harmless Seller from any legal obligations in connection with such packing waste.

4. PAYMENT.

1. The term of payment shall be net 30 days from the date of Seller’s invoice, unless otherwise specified by Seller in writing. Payments shall be made by Buyer without any deduction or set-off. Unless otherwise agreed in writing, payment shall be made by Buyer in U.S. dollars. If Buyer does not make payment in accordance with the terms hereto, Seller may charge late payment fees at a rate of 1.5% per month, or the highest rate permitted by law, whichever is less. Such late payment fees shall accrue daily.

1. If the creditworthiness of Buyer has not been established, the financial condition of Buyer is unsatisfactory to Seller, or Buyer has previously failed to meet its obligations in Section 4(A) above, Seller may require full or partial payment in advance, or satisfactory security, in the form of a letter of credit or otherwise. In the event of bankruptcy or insolvency of Buyer, Seller may immediately cancel any Purchase Order then outstanding.

1. Buyer grants Seller a purchase money security interest in Products located in the United States. In addition, Buyer grants Seller a security interest in products created by the Services, as well as any proceeds from Products and/or Services. Any security interest granted to Seller by Buyer shall be for the purpose of securing the obligations of Buyer hereunder. Buyer authorizes Seller to execute and file on Buyer’s behalf any such financing statements as Seller deems appropriate to perfect and notify Buyer’s creditors of Seller’s security interest.

5. VARIATIONS IN QUANTITY; CHANGES.

1. Buyer shall accept delivery of Products in quantities greater or smaller than the quantity specified in a Purchase Order(s), provided that any such variation in Product quantity shall not exceed 5% of the quantity originally specified, or 2 units, whichever is greater. Seller shall not be required to give notice of any such Product quantity variation other than in the applicable shipping notice and invoice. Seller reserves the right to make changes to Products or Services which do not affect form, fit, or function, and Seller shall deliver Products to the latest configuration part number at the time of delivery.

1. Seller reserves the right to reject any Buyer Purchase Order which does not contain a delivery schedule for all Products requested for purchase or contains delivery dates greater than 12 months from the original date of issuance of the Purchase Order.

1. Following confirmed acceptance by Seller of a Buyer Purchase Order, Buyer may request changes to delivery and quantity terms which Seller may accept or reject in its sole discretion.

6. CANCELLATION. Undelivered Product parts included in a Purchase Order may be canceled by Buyer only with the written consent of Seller. If the Buyer makes an assignment for the benefit of its creditors, or in the event that Seller for any reason feels insecure about Buyer’s willingness or ability to perform under this Agreement, the Seller shall have the right, in its sole discretion, to cancel this Agreement or demand full or partial payment in advance pursuant to Section 4 above. In the event of any cancellation of a Purchase Order by either Party, Buyer shall pay to the Seller the reasonable costs and expenses (including labor, work in progress, overhead expenses, engineering expenses and all commitments to its suppliers and subcontractors) incurred by the Seller prior to receipt of notice of such cancellation, plus the Seller’s usual rate of profit for similar work. In the event of cancellation of this Agreement by the Buyer, the minimum cancellation charge shall be 20% of the price quoted in the applicable Purchase Order for standard Products that can be restocked. The minimum cancellation charge for custom Products shall be 65% of the price quoted in the applicable Purchase Order.

7. WARRANTIES.

1. Seller warrants that Products manufactured by Seller, when delivered, shall be free from defects in material and workmanship. Seller warrants that Services shall be performed in accordance with generally accepted industry practice. Seller’s obligations under this warranty shall be limited exclusively to repairing or replacing, at Seller’s option, any part of Products which, if properly installed, used and maintained, proved to have been defective in material or workmanship within the term specified in Table A from the date of shipment. Seller’s obligations for Services that do not meet the warranty obligations above shall be limited to, at Seller’s option, re-performance of the Services or refund of fees paid therefor. Buyer shall notify Seller of any defect in the quality or condition of Products or Services within 7 days of the date of delivery or performance, unless the defect was not apparent on reasonable inspection, in which case, within 7 days after discovery of the defect.  If Buyer does not provide such timely notification, it shall not be entitled to reject Products or Services, and Seller shall have no liability for such defect.

1. Seller’s warranty obligations shall not apply to Products which: (1) have been altered or repaired by Buyer or a third party other than Seller, (2) have been subjected to any misuse, neglect, or improper use or application, (3) are normally consumed in operation, (4) have a normal life inherently shorter than the warranty period stated therein, or (5) have been subjected to extraordinary environmental conditions or laser illumination.

1. No Products may be returned by Buyer unless: (1) authorized in advance by Seller, and (2) such return is made in accordance with terms and conditions agreed upon in writing by Seller. Buyer must obtain a Return Material Authorization (“RMA”) number from Seller prior to any return shipment, and such RMA number must appear on the applicable shipping label and packing slip. Buyer shall bear the risk of loss and be responsible and liable for returned Products until such time as Seller receives the same at its return Facility indicated in the RMA or otherwise identified by Seller. In addition, Buyer is responsible for, and shall pay all charges for packing, inspection, shipping, transportation or insurance associated with returned Products.

1. This section 7 sets forth Buyer’s exclusive remedies and obligations for liabilities, losses, expenses, liens, claims, demands, and causes of action (“Claims”) based upon defects in or nonconformity of Products and/or Services, whether such Claim sounds in contract, tort (including negligence of any degree or strict liability) or otherwise. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY.

1. Certain Product warranty terms are set forth below and may be changed in writing by Seller at its discretion:

8. CUSTOMER FURNISHED MATERIALS. If the Services offered are based upon the Buyer furnishing Buyer’s property, Seller shall not be liable for any loss or damage to Buyer’s property while parts are in process, except to the extent such loss or damage is the result of gross negligence or other willful acts on the part of the Seller. Seller shall not be obligated to insure material furnished to Seller by Buyer. Seller is not responsible for any specification or warranty non-compliance due to the condition of Buyer-furnished materials.

NOTE: Delivery dates are subject to adjustment if Buyer furnished material does not arrive by the mutually agreed upon date.

9. LIMITATION OF LIABILITY. The total liability of Seller on any Claim, whether in contract, tort (including negligence of any degree and strict liability) or otherwise arising out of, connected with, or resulting from the Services or arising out of, connected with, or resulting from the manufacture, sale, delivery, resale, repair, replacement or use of any Products, shall not exceed the price allocable to the specific Product and/or Service or part thereof which gives rise to the Claim. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT, (INCLUDING NEGLIGENCE OF ANY DEGREE, STRICT LIABILITY, PATENT OR ANY OTHER INFRINGEMENT OF INTELLECTUAL PROPERTY) OR OTHERWISE, WILL SELLER, ITS AFFILIATES, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, PROXIMATE, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE PRODUCTS OR SERVICES, OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME COSTS OR CLAIMS OF BUYER’S CUSTOMERS FOR DAMAGES. SELLER’S AGGREGATE MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS PAID BY BUYER TO SELLER DURING THE TRAILING TWELVE-MONTH PERIOD. If Buyer transfers title to, or leases Products sold hereunder to, or otherwise permits use by, any third party, Buyer shall obtain from such third party a signed writing affording Seller and its subcontractors/suppliers the protections and limitations of this Section 9. Any Claim brought against Seller must be brought within 18 months from the date of the event giving rise to such Claim.

10. PATENT, COPYRIGHT, AND TRADEMARK INDEMNIFICATION. Seller shall hold harmless and indemnify Buyer against all third party Claims, judgments, costs, and fees, including attorney fees, relating to infringement of any patent, copyright, trademark, or design in respect of Products sold hereunder to the extent that both (a) the infringing Products are manufactured, sold, or used, in whole or in part, pursuant to Seller’s specifications, designs, drawings, or other technical data, and (b) Buyer notifies Seller in writing of any such Claim as soon as reasonably practicable, and allows Seller to control, and reasonably cooperates with Seller in the defense of any such Claim and related settlement negotiations. To the extent that any Products are held by a court of competent jurisdiction to infringe or otherwise violate a third party’s proprietary rights or are believed by Seller to infringe or otherwise violate a third party’s proprietary rights, Seller may, in its sole discretion and expense, either (a) modify the affected Products to be non-infringing, or (b) obtain for Buyer a license to continue using such Products on substantially the same terms set forth in this Agreement, or, if neither of the foregoing alternatives is reasonably available to Seller, (c) Seller may require Buyer to return the infringing Products and all rights thereto, and refund to Buyer the price paid to Seller for the infringing Products. Seller shall have no obligation under this Section 10, and Buyer shall indemnify, defend, and hold harmless Seller to the extent any Claim is based on (a) modifications of Products by a party other than Seller or Seller’s authorized representative, (b) the design, combination, operation, or use of Products with equipment, devices, software, or data not supplied by Seller, (c) the use or installation Products in an environment for which such Products were not intended, (d) Buyer’s failure to use updated or modified versions of Products provided by Seller, or (e) the negligent acts or omissions or willful misconduct of Buyer, its employees, representatives, or affiliates. Seller’s indemnification obligations under This Section 10, do not apply to any Products manufactured, sold, or used, in whole or in part, pursuant to Buyer’s specifications, designs, drawings, or other technical data. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF SELLER AND BUYER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT PURUSANT TO ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

11. INDEMNIFICATION. Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other party, its officers, directors, and employees (the “Indemnified Party”) from and against any and all Claims for death, personal injury, or property damage arising out of any negligent act or omission of the Indemnifying Party in the performance of this Agreement, except to the extent such Claims are contributed to or caused by the negligence or willful misconduct of the Indemnified Party or of any third parties. Buyer agrees to indemnify, defend, and hold harmless Seller, its officers, directors, and employees for any and all Claims, including Claims asserted by third parties, related to any Products manufactured or Services performed in whole or in part to Buyer’s designs or attributed to equipment, information, or materials furnished by Buyer to Seller. The Indemnified Party agrees to (a) notify the Indemnifying Party in writing of any Claims as soon as reasonably practicable, (b) allow the Indemnifying Party to control the defense of any such Claim and related settlement negotiations, and (c) reasonably cooperate with the Indemnifying Party in such defense.

12. FORCE MAJEURE; EXCUSABLE DELAYS.

1. Seller shall not be liable for delays in delivery or failure to perform due directly or indirectly to causes beyond Seller’s reasonable control, including but not limited to: acts of God; war; terrorism; civil commotion; riots; embargoes; government regulations, orders, instructions or priorities; port congestion; acts of or failure to act on the part of Buyer or its agents/employees; fires; floods; sabotage; nuclear incidents; earthquakes; storms; epidemics; strikes; lockouts or other labor difficulties; shortages of or inability to timely obtain proper labor, materials, components, shipping space or transportation, fuel, supplies or power at current prices; or due to limitations imposed by the extent of availability of Seller’s normal manufacturing facilities.

1. If a delay excused per the above extends for more than 90 days and the Parties have not agreed upon a revised basis for continuing to provide Products and/or Services, including adjustment to the agreed upon price of such Products and/or Services, then either Party (except where delay is caused by Buyer, in which event only Seller) upon 30 days’ written notice may terminate the applicable Purchase Order with respect to the undelivered Products thereof, or, may terminate the applicable Agreement for Services with respect to the unperformed Services thereof. Upon termination, Buyer shall promptly pay Seller its reasonable termination charges upon submission of Seller’s invoices thereof.

13. MASTER GRATINGS, DIES, TOOLS, PATTERNS, DRAWINGS.

1. Seller’s charges for Master Gratings, dies, molds, patterns and the like represent the Buyer’s proportionate cost thereof, it being expressly understood that such Master Gratings, dies, molds, patterns and the like remain the property of Seller. Modifications made to dies, molds, patterns and the like in order to manufacture Products shall be made at the sole discretion of Seller. Seller reserves the right to create replications of Master Gratings at any time without notice to Buyer unless otherwise explicitly agreed upon in writing.

1. Seller’s drawings remain the property of Seller unless otherwise agreed upon in writing.

14. EXPORT CONTROLS; FCPA; ANTI-BOYCOTT.

1. Buyer shall not make any disposition of the Products by way of transshipment, re-export, diversion or otherwise, except as expressly permitted by applicable U.S. export laws, and other than in and to the ultimate country of destination specified on an applicable Purchase Order(s), or as declared as the country of ultimate destination on Seller’s invoices or in the End Use Statement that Buyer supplies Seller. Seller shall not be named as shipper or exporter of record or U.S. principal party-in-interest (“USPPI”) unless specifically agreed upon in writing by Seller in which case, Buyer shall provide Seller with a copy of the documents filed by Buyer for export clearance purposes. At Seller’s request, Buyer shall supply end-use and end-user information to determine export license applicability. Failure of Buyer to comply with this Section 14 shall constitute a material breach of this Agreement allowing Seller to terminate this Agreement and related Purchase Order(s) at Buyer’s expense without liability to Seller.

1. Buyer warrants that it shall not violate or cause the Seller to violate any applicable antibribery law, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977 (“FCPA”), as amended, the United Kingdom Bribery Act (“UKBA”) of 2010, as amended, or their respective implementing regulations in connection with Buyer’s sale or distribution of the Products and/or Services, and that Buyer does not know or have reason to believe that any consultant, agent, representative or other person retained by Buyer in connection with the sale and/or distribution of Products and/or Services has violated, nor caused Seller to violate the FPCA and/or the UKBA. Where Buyer learns of or has reason to know of any violation of the FCPA and/or UKBA in connection with the sale or distribution of Products and/or Services, Buyer shall immediately notify Seller in writing.

1. Buyer shall not violate or cause Seller to violate the U.S. Antiboycott Provisions of the U.S. Export Administration Regulations issued pursuant to the U.S. Export Administration Act of 1979, as amended, in connection with Buyer’s purchase of Products and/or Services and that Buyer shall not request or require Seller to make statements or certifications against countries that are not subject to boycott by the U.S.

15. GOVERNMENT CONTRACTS. Only Federal Acquisition Regulation (“FAR”) supplement clauses expressly agreed upon in writing by Seller shall be included or incorporated by reference to this Agreement. Seller shall not be bound by and makes no representation of compliance with any FAR or FAR supplement clauses that Seller has not expressly agreed upon in writing.

16. INDEPENDENT CONTRACTOR. Buyer is an independent contractor for all purposes, without express or implied authority to bind Seller by contract or otherwise. Neither Buyer nor its employees, agents or subcontractors are agents or employees of Seller, nor entitled to any employee benefits of Seller, including but not limited to, any type of insurance.

17. Termination.

1. For Convenience. Seller may terminate this Agreement at any time by giving Buyer at least 60 days prior written notice. Either party may terminate this Agreement if the requirements of Section 12(B) are met.

1. For Failure to Pay. If Buyer fails to pay Seller within 30 days of the date when payments are due under this Agreement, Seller may give to Buyer written notice of termination and an opportunity to cure such non-payment, which shall include payment of applicable late fees. If Buyer does not make such payment within 10 days of receiving such termination notice, then this Agreement shall terminate effective as of the end of such 10-day period, unless Seller, without obligation to do so and in its sole discretion, provides Buyer additional time to make such payment, which shall include payment of all applicable late fees.

1. For Material Breach. Either Party may terminate this Agreement (the “Terminating Party”) due to the material breach of the other Party (the “Breaching Party”); provided, however, that the Terminating Party shall first give to the Breaching Party written notice of the proposed termination or cancellation of this Agreement, specifying the grounds therefor.

1. Effect of Termination. If this Agreement is terminated, it shall not relieve Buyer of its obligation to pay Seller the fees (including late fees) that are not reasonably in dispute for Products and/or Services provided prior to such termination, nor shall it limit the remedies to which a Party is otherwise entitled under applicable law.

18. NOTICES. All notices given by the Parties hereto shall be made in writing and delivered personally or sent by prepaid mail (by air-mail if the notice is being communicated internationally), or by or email addressed to the intended recipient at its address or at its electronic address provided such email is confirmed by the intended recipient as received. Regardless of the method of transmittal, the sending Party is responsible for obtaining a return receipt for the notice, demand, or communication.

19. GENERAL.

1. The rights and obligations of the Buyer and Seller hereunder shall be governed in all respects by the laws of the State of Delaware, U.S.A. without regard to its conflicts of law provisions. The exclusive forum for adjudication of any disputes shall be the federal or state courts of the State of Delaware, and Buyer and Seller hereby consent to personal jurisdiction and venue in such courts in any proceeding arising under or related to this Agreement. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement.

1. This Agreement, including the terms hereof, constitute the entire agreement between Buyer and Seller and supersede any prior or contemporaneous representations, agreements, proposals, warranties, or understandings, oral or written, express or implied. No waiver, modification, amendment, rescission or other change to this Agreement shall be binding unless specifically agreed upon in writing by an authorized representative of Seller.

1. The invalidity of any part of these Terms and Conditions shall not affect the validity of the remainder. The failure of Seller at any time to assert any right hereunder shall not constitute a waiver of such right or prevent Seller’s subsequent assertion of the same or different rights.

1. Buyer may not assign this contract without the prior written approval of Seller.