Optimet – Optical Metrology Ltd. ("Optimet") provides the following Standard
Terms and Conditions of Sale ("Terms and Conditions"), which apply to all
quotations and sales made by Optimet. All purchases of products ("Goods") from
Optimet by customer, owner, or its agent ("Purchaser") are subject to these Terms
and Conditions, and no provision printed or otherwise, contained in any order,
acceptance, confirmation, or acknowledgement which is inconsistent with, different
from, or in addition to these Terms and Conditions is accepted by Optimet unless
specifically agreed to in writing by a duly authorized officer of Optimet.
ORDERS: By submitting an order to Optimet or by using any Goods that were
purchased from Optimet, Purchaser agrees to be subject to these Terms and
Conditions of Sale in their entirety. All orders must be bona fide commitments
showing mutually agreed prices, quantities and shipping terms. If an order is
submitted to Optimet in response to a written Optimet quotation, the order must
contain the Optimet Quotation number. No order or other commitment, whether or
not submitted in response to a quotation by Optimet, shall be binding upon Optimet
until such order or other commitment is accepted in writing by Optimet.
Confirmation of Purchaser's order by Optimet is subject to verification of
Purchaser's credit worthiness.
UTILIZATION LIMIT. The Purchaser may not modify, disassemble, reverse
compile, reverse engineer, reproduce, and/or create derivative works or
modifications of the Product or any parts thereof.
TIME LIMIT. All quotations are valid for a period of thirty (30) days, unless
otherwise specified in writing.
SHIPMENT. Unless otherwise agreed in writing by the parties, pricing and
shipping terms shall be Ex-works Optimet shipping point (as the case may be). If
the Purchaser has not issued inspection or shipping instructions by the time the
Goods are ready for shipment, Optimet may select any reasonable method of
shipment, without liability by reason of its selection. Shipments made on
Purchaser's behalf shall be insured at Purchaser's expense. If Optimet is required to
arrange for shipment of the Goods or any parts thereof, Purchaser shall reimburse
Optimet for all freight, insurance and other shipping related costs and Purchaser
will pay Optimet a handling fee for each such shipment. Shipment of Goods held
by reason of Purchaser's request or inability to receive Goods will be at the risk and
expense of Purchaser. Claims for shortages in shipment shall be deemed waived
unless made in writing to Optimet within seven (7) days from the date of receipt of
the Goods.
PAYMENT TERMS. Payments will be made in accordance with the specified
payment schedule, including the payment period, in the purchase order that was
accepted by Optimet. Unless otherwise specified in a purchase order that was
accepted in writing by Optimet, all payments are due net thirty (30) days from the
date of invoice. Purchaser's failure to make payment when due will be considered a
material breach of the order and these Terms and Conditions. Optimet, at its sole
discretion, may charge the Purchasers for a late fee of 1.5% per month on the
outstanding amount until the date of actual payment. In addition, Optimet, at its sole
discretion and without incurring any liability, may suspend its performance until
such time as the overdue payment is received or until written approval by Optimet
of an alternative payment schedule has been issued. In the event of such suspension
of performance by Optimet, there will be an equitable adjustment made to the
delivery schedule and order price reflecting the duration and cost resulting from
such suspension. Purchaser may only suspend the order upon Optimet's written
consent. In the event of such Purchaser's order suspension, the delivery time will
be changed, taking into account the suspension, and Purchaser will promptly pay
Optimet for all costs and related overhead costs resulting from such suspension.
Optimet will equitably re-price the Goods and services if the cumulative suspension
exceeds ninety (90) days. If in the judgment of Optimet, Purchaser's financial
position does not justify the terms of payment specified, Optimet may require full or partial payment prior to shipment of the Goods. Purchaser agrees to furnish
Optimet with the required credit information.
TAXES. Federal, state, or local indirect taxes, including but not limited to sales
and/or use taxes, VAT taxes, GST taxes, transfer taxes or any similar tax are not
included in the prices set forth herein. In the absence of proper evidence of
exemptions supplied to Optimet, Purchaser will reimburse Optimet for all taxes,
excises, duties, imposts or other charges which Optimet may be required to pay any
government (national, state or local) upon, or measured by the production of any
phase or part of the production, storage, sale, transportation, delivery and/or use of
the Goods.
LIMITED WARRANTY; DISCLAIMER OF WARRANTIES. Optimet
warrants that the Goods sold hereunder shall be free from material defects in
workmanship or materials and conform in all material respects to Optimet
specifications, which are available upon request, or Purchaser's supplied and
accepted specifications, for the following Warranty Period: for one (1) year
following the day of the original shipment from Optimet. This warranty does not
cover Purchaser-furnished materials; and will not apply with regard to installation
and/or assembling into Purchaser's set or system. . All warranty claims must be
submitted in writing to Optimet within the applicable warranty period and all nonconforming
Goods must be returned to Optimet, at purchaser's cost and expense,
before Optimet replaces the same or refunds the purchase price to the Purchaser as
set forth below. No Goods shall be returned to Optimet without obtaining a Return
Material Authorization (RMA) number first which must be clearly marked on the
outside of the shipping container.
Optimet' liability for breach of warranty shall be limited to, in Optimet' sole
discretion, (i) repairing or replacing Goods that Optimet determines do not conform
to the foregoing warranty, or (ii) refunding the sales price received by Optimet in
respect of the non-conforming Goods. This remedy shall be the Purchaser's sole
and exclusive remedy for any defect or nonconformity in the Goods. This warranty
extends only to the immediate purchaser from Optimet and does not extend,
expressly or impliedly, to any other party.
In no event shall Optimet incur any obligation to repair or replace Goods which are
determined by Optimet, at its sole discretion, to be defective due to (i) installation,
maintenance, operation, modification, alteration, accident, neglect or use in any way
other than in strict compliance with Optimet' published specifications for the
Goods, (ii) the failure to maintain appropriate environmental conditions, as
communicated by Seller, (iii) as the result of the use of unauthorized parts or
repairs, or unauthorized modifications (iv) any repair work on the product that is
performed by the Purchaser or any third party on behalf of the Purchaser (other than
Optimet), or (v) modification or alteration of the Goods such that Optimet is unable
to verify the defect with its standard test equipment.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED HEREIN,
THE GOODS ARE SUPPLIED ON AN "AS IS" BASIS AND PURCHASER'S
USE OF THE GOODS IS AT PURCHASER'S RISK. OPTIMET DOES NOT
MAKE AND HEREBY DISCLAIMS ALL OTHER EXPRESS AND/OR
IMPLIED WARRANTIES WITH RESPECT TO THE GOODS, INCLUDING
WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR PARTICULAR PURPOSE OR ANY WARRANTIES
ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE AND
ANY WARRANTIES OF NONINFRINGEMENT AND TITLE.
GENERAL; INTELLECTUAL PROPERTY. When furnished, designed,
developed and/or manufactured by Optimet, all tools and/or dies, together with
incidental fixtures and materials necessary for the manufacture of Goods ordered,
shall remain the property of Optimet. All tools, dies, fixtures and/or materials will
be maintained for one (1) year after shipment. Unless otherwise agreed to in
writing by Optimet, Optimet shall own all right, title and interest in and to the
patent, design and other intellectual property rights in and to all products sold to Purchaser hereunder, and nothing contained herein shall give Purchaser any right to
utilize any such intellectual property in any manner whatsoever except in
connection with Purchaser's use of the applicable product in accordance with the
documentation for the same provided by Optimet. Goods are sold to accepted
manufacturing variations or tolerances, except when otherwise agreed to by both
parties. Except for Goods that are manufactured to specifications provided by
Purchaser, Optimet represents and warrants that Purchaser's use of the products
sold by Optimet hereunder in accordance with Optimet specifications and
documentation for the same will not infringe upon any Israeli or United States
patent. Optimet will defend, indemnify and hold Purchaser harmless of, from and
against any and all claims and expenses, including court costs and attorney fees,
arising out of Optimet' breach of this section; provided that Optimet will have no
obligation to indemnify Purchaser for any claims arising out of (i) Purchaser's use
of the products in combination with any process or other products, or (ii) any
drawings or specifications provided by Purchaser in connection with the products.
If Purchaser provides specifications or drawings for the product to Optimet,
Purchaser represents and warrants to Optimet that Optimet' use of the same in the
manufacture of the products for Purchaser will not infringe upon the patent, design,
trade secret or other intellectual property rights of any person or entity, and
Purchaser agrees to defend, indemnify and hold Optimet harmless of, from and
against any and all claims and expenses, including court costs and attorney fees,
arising out of Purchaser's breach or alleged breach of this section.
SOFTWARE END USER LICENSE: The following provisions shall apply when
Product includes software ("Software"): (1) Optimet hereby grants to the Purchaser,
and the Purchaser hereby accepts, a nonexclusive, nontransferable and herewith
restricted license to use the Software and any documentation received with its
regard, when applicable, exclusively for the operating of the Product, on which the
Software has been preinstalled, for the purpose as described in the Purchase Order
or otherwise agreed in writing between the parties. The Purchaser shall not be
entitled to make any other use of the Software or any Documentation received with
it. (2) Without derogating the above detailed, the Purchaser may not modify,
disassemble, reverse compile, reverse engineer, reproduce, and/or create derivative
works or modifications of the Software or any other parts thereof. The Software
may not be copied except as necessary for the use of the Product according to the
Purpose. (3) The purchaser acknowledges that the Software may be licensed by
Optimet from third party and that unauthorized use of the Software will create
Optimet's violation of obligation contained in its Software license agreement with
third party, resulting with irreparable harm. Purchaser acknowledges that the
licensed software constitutes valuable trade secrets of Optimet and/or third party.
Purchaser shall have no rights in or to the Software other than specified herein.
Without derogating the aforementioned, Purchaser shall not sublicense, distribute,
sell or otherwise transfer the Software to any third party. (4) Unless otherwise
agreed in the Order Purchase, Optimet is not obligated to provide support of any
kind for the Software. If provided, support services may be charged for, as
concluded and updated by Optimet from time to time. (5) Software evaluation
installation will not exceed ninety (90) days, Purchaser obliges not to use Product
and Software thereafter. The directives of this Agreement shall apply with regard to
any use of the Product and the Software received for evaluation, with the necessary
amendments.
CHANGES, CANCELLATIONS. Specification changes made after Purchaser
places an order are subject to price adjustments and to Optimet' written approval
and Purchaser will reimburse Optimet for all loss and expenses incurred by Optimet
arising out of such change. Cancellations shall be by mutual agreement in writing,
provided that Purchaser will reimburse Optimet for all loss and expenses incurred
by Optimet arising out of such cancellation.
TITLE AND RISK OF LOSS OR DAMAGE. Risk of loss and/or damage will
pass to the Purchaser upon shipment of the Goods. Title to the Goods shall pass
from Optimet to Purchase upon full payment for the Goods.
CONFIDENTIALITY. Purchaser agrees that Optimet's Product contains valuable
proprietary information and that unauthorized dissemination or disclosure of the
Product, the Software or any part thereof could cause Optimet irreparable harm.
Purchaser acknowledges that the Product is Optimet's confidential information
(hereinafter "Confidential Information"). Purchaser shall hold in strict confidence
any such Confidential Information received from Optimet and shall protect the
confidentiality of such with the same degree of care as for its own information of
like importance, but no less than reasonable degree of care. Purchaser undertakes to
disclose the Confidential Information only to its employees who have to be so
informed on a "need to know" basis and, which are bound by a written agreement to
maintain the Confidential Information in strict confidence (the "Authorized
Personnel"). Purchaser shall be responsible that the obligations contained herein are
strictly observed by the Authorized Personnel. Confidential Information shall be
stored in well guarded area to which only the Authorized Personnel shall have
access.
GOVERNING LAW & JURISDICTION. All matters involving the validity,
interpretation, and application of these Standard Terms and Conditions of Sale will
be controlled by the laws of the State of Israel without reference to the conflicts of
laws provisions. All disputes arising out of this Standard Terms and Condition of
Sale or related to its violation or execution will be submitted to the exclusive
jurisdiction of the competent court of law in Jerusalem, Israel; provided, however,
that nothing herein shall prevent Optimet from commencing suit for interim relief or
equitable remedies (whether temporary or permanent) in any jurisdiction it may
deem fit.
CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY. IN NO
EVENT SHALL OPTIMET BE LIABLE TO PURCHASER FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT, COSTS OF
DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED
DATA OR DOCUMENTATION, COST OF REMOVAL AND
REINSTALLATION OF GOODS, LOSS OF GOODWILL, INTERRUPTION
OF BUSINESS, LIABILITIES TO THIRD PARTIES ARISING FROM ANY
SOURCE OR OTHER ECONOMIC LOSS, WHETHER OR NOT
PURCHASER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSSES AND WHETHER SUCH DAMAGES ARE ALLEGED AS A
RESULT OF TORTIOUS CONDUCT, BREACH OF CONTRACT OR
OTHERWISE.
OPTIMET' TOTAL LIABILITY FOR EACH DEFECTIVE PRODUCT,
INCLUDING WITHOUT LIMITATION INTELLECTUAL PROPERTY
INDEMNIFICATION, SHALL NOT EXCEED THE PRICE OF SUCH
PRODUCT.
FORCE MAJEURE. No liability shall result from delay in performance or nonperformance
(except with respect to payment by Purchaser) to the extent that it
results from any cause (including without limitation, weather, fire, strike or other
labor difficulty; breakdown, shortage of or inability to obtain materials, equipment
or transportation; act, order, regulation or request of governmental body or court; or
other force majeure beyond the reasonable control of the party affected or obligated
hereunder. If Optimet' supply of Goods is limited by any such cause, Optimet shall
have the right to prorate Optimet' available supply over Optimet' own
manufacturing requirements and Optimet' commitments to its customers as Optimet
considers fair.
EXPORT. Optimet's obligation to deliver the Goods to Purchaser outside the State
of Israel , shall be at all times subject to all applicable export laws and regulations and conditioned upon the receipt of an appropriate export license, when such
license is required under applicable laws and regulations. Regardless of any
disclosure made by Purchaser to Optimet of an ultimate destination of Optimet
Products, Purchaser will not export either directly or indirectly any Product
purchased from Optimet without first obtaining all required licenses and permits
from the relevant authorities in Israel, all to the extent that such requirements are
required under applicable export control laws and regulations.
NON-WAIVER OF DEFAULT; REMEDIES: In the event of any default by
Purchaser under this or any other contract between Optimet and Purchaser, Optimet
may decline to make further shipments. If Optimet elects to continue to make
shipments, Optimet's action shall not constitute a waiver of any default by
Purchaser or in any way affect Optimet's legal remedies for any such default. All
Optimet's rights and remedies, whether evidenced hereby or by any other contract
or document, shall be cumulative and nonexclusive and may be exercised singularly
or concurrently.
HEADINGS. The headings used throughout are for convenience only and will be
disregarded for the purpose of construing and enforcing these Terms and
Conditions.
