1. Definitions

“Contract” means any Purchase Order together with these terms and conditions;

“DDP” means Delivered Duty Paid (DDP) in accordance with Incoterms 2020;

“Delivery Address” means the address specified as such in the Purchase Order;

“Delivery Date” means the date  specified as such in the Purchase Order;

 “Goods” means any goods to be delivered by Supplier to WaveOptics as set out in a Purchase Order;

“Intellectual Property Rights” means all patents, registered and unregistered designs, technology, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;

“Party” or “Parties” means WaveOptics and/ or Supplier as appropriate;

“Price” means the price set out in the Purchase Order to be paid by WaveOptics to Supplier in consideration for the Work;

“Purchase Order” means a WaveOptics purchase order (and any appended statement of work) which references these terms and conditions;

“Services” means any services to be performed by Supplier to WaveOptics as set out in a Purchase Order;

“Supplier” means the company to whom the Purchase Order is addressed;

“Supplier Personnel” means any employee, consultant and/ or contractor provided by Supplier to WaveOptics in connection with the performance of the Work;

“Supplier Taxes” shall take the meaning set out in Clause 5.5;

“Warranty Period” means the period of 12 months from completion of the Work, or completion of any repair or replacement in accordance with Clause 6.3;

“WaveOptics” means Wave Optics Limited, a company with registration number 08202019, having its registered office at 141 Park Drive, Milton, Abingdon, England, OX14 4SR;

“WaveOptics Technology” means (a) WaveOptics technology including in the field of optical display systems for Head-Up Displays, Head Mounted Displays, Near to Eye Displays and ‘smart’ glasses, and the design and manufacturing of the same, and all improvements, enhancements or modifications thereto, and (b) any software, applications, inventions or other technology developed in connection with WaveOptics technology or support; and

“Work” means any Goods and/ or Services set out in a Purchase Order.

2. Terms and Conditions

2.1 The Contract shall govern the Work to the exclusion of any other terms and conditions provided by Supplier in acknowledging the Purchase Order including any terms referenced in any acknowledgment, delivery note and/ or quotation.  In the event of any conflict, the Purchase Order shall take precedence over these terms and conditions.

2.2 The Contract contains the entire agreement between the Parties relating to the subject matter.  No changes or variations to the Contract shall be effective unless agreed in writing between the Parties.

3. Performance

3.1 Supplier shall:

3.1.1 supply Goods in the quantity, type, sort, quality and description set out in the Purchase Order; and

3.1.2 perform Services in accordance with the description in the Purchase Order and WaveOptics’ instructions.

3.2 Supplier shall deliver the Work by the Delivery Date to the Delivery Address in accordance with the Contract.  Time is of the essence for delivery of Goods and/or performance of Services.

3.3 Supplier shall deliver the Goods DDP unless otherwise specified in the Purchase Order.

3.4 Supplier warrants, represents and undertakes that for the duration of the Contract:

3.4.1 Supplier Personnel will possess the qualifications, professional competence and experience to perform the Work in accordance with good practice within its industry;

3.4.2 it shall maintain necessary licences, consents and permits required of it for the performance of the Work (including but not limited to any export and/or import licences and permits);

3.4.3 it shall maintain appropriate insurance policies as required by law, or reasonably required by WaveOptics; and

3.4.4 it shall provide WaveOptics any requested progress reports, evidence or information concerning the Work.

3.5 Supplier shall comply with all statutes, orders, regulations or bye laws applicable to the performance of this Contract and the Work and Supplier shall procure that Supplier Personnel take all reasonable steps to safeguard their own safety and the safety of any other person who may be affected by their actions or omissions.

3.6 Where applicable, all Goods shall be compliant with (a) Regulation of Hazardous Substances Directive (2011/65/EC), (b) Registration, Evaluation, Authorisation and Restriction of Chemicals Regulation (EC1907/2006); (c) Halogen Free International Electricity Commission Standard 61249-2-21 (d) Conflict Minerals Regulation (3T) EU 2017/821; and (e) Proposition 65; Safe Drinking Water and Toxic Enforcement Act of 1986.

4. Title and Risk

4.1 Supplier warrants that it has good title to the Goods and that such title will transfer to WaveOptics pursuant to Clause 4.2.

4.2 Subject to Clause 6.1.2, title in the Goods shall pass to WaveOptics on delivery. Delivery of Goods shall be deemed to be made on completion of the unloading of the Goods at the Delivery Address.

4.3 Subject to Clause 6.1.2, the Goods shall be and shall remain at Supplier’s risk until such time as they are delivered to WaveOptics in accordance with the requirements of this Contract.

5. Price and Payment

5.1 WaveOptics shall pay Supplier the Price within 60 days following receipt of a validly submitted and undisputed invoice.

5.2 An invoice shall be provided to WaveOptics by Supplier on completion of the Work.  It is a condition of the Contract that invoices are submitted within 6 months of completion of the Work.

5.3 In the event of late (undisputed) payment by WaveOptics, Supplier shall be entitled to charge WaveOptics interest at a rate of 2% per annum above the Bank of England base rate, from the date payment is due until payment is made.

5.4 Without limiting its other rights or remedies, WaveOptics may set off any amounts owing to it by the Supplier or its affiliates (under the Contract or otherwise) against any amount payable by WaveOptics to Supplier or its affiliates.

5.5 Unless expressly stated otherwise in the applicable Purchase Order the Price is expressed exclusive of VAT, but inclusive of all other taxes (including customs duties) payable by Supplier in connection with the performance of the Work (“Supplier Taxes”).

6. Remedies

6.1 Without limiting its other rights and remedies, WaveOptics may at any time (by giving notice in writing to Supplier) reject any Goods which are not in compliance with the Contract, in which case:

6.1.1 Supplier shall promptly collect the rejected Goods from WaveOptics at Supplier’s expense;

6.1.2 risk and title in the Goods shall transfer back to Supplier from rejection of Goods; and

6.1.3 sums payable and/ or paid for rejected Goods shall not become payable and/or shall be refunded (as applicable).

6.2 Supplier warrants that the Work shall be supplied with due skill and care, be of good workmanship, fit for purpose, free from defects and conform to any specifications and drawings set out or referred to in the Contract (or agreed between the Parties pursuant to the Contract) throughout the Warranty Period.

6.3 On Supplier’s breach of Clause 6.2, and without prejudice to WaveOptics’ other rights and remedies, Supplier shall (as required and directed by WaveOptics) promptly repair or replace defective Goods and/or promptly remedy any defective Services (as applicable) at Supplier’s risk and expense, or promptly repay the Price, or part thereof relating to the defect, in either case as requested by WaveOptics.

6.4 If Supplier refuses or fails to repair or replace defective Goods (or any part thereof) and/or refuses or fails to remedy any defective Services (as applicable) promptly when requested in accordance with Clause 6.3, WaveOptics may itself, or through a third party, repair or replace any such Goods (or any part thereof) and/or remedy any such Services and Supplier agrees to reimburse WaveOptics for any reasonable costs or expenses incurred in doing so.

7. Termination

7.1 WaveOptics may terminate the Contract for any reason by providing not less than 15 days prior written notice to Supplier.

7.2  Either Party may terminate the Contract with immediate effect by providing written notice to the other Party if:

7.2.1 the other Party (and, in the case of the Supplier, if any Supplier Personnel) commits any material or persistent breach of the Contract; and/ or

7.2.2 the other Party is insolvent or unable to pay its debts as they fall due.

7.3 In the event of termination of the Contract by WaveOptics in accordance with  Clauses 7.2, no further payments shall be made by WaveOptics, unless otherwise agreed between the Parties.

8. Indemnity and Liabilities

8.1 Supplier shall indemnify, defend and hold harmless WaveOptics against all liabilities, costs, expenses, damages and losses (including any direct, indirect and consequential losses) incurred by WaveOptics arising out of or in connection with: (i) any claim the Work, any part of the Work, or the use thereof infringes, misappropriates or violates Intellectual Property Rights of a third party; (ii) any claim the Work caused personal injury and/ or property damage; (iii) negligent and/or intentional acts or omissions of Supplier and/or Supplier Personnel; (iv) Supplier’s breach of any of Clauses 3.5, 3.6, 9, 10.3 to 10.6; and (v) any Supplier Taxes payable by Supplier in connection with the performance of the Work.

8.2 Any reference to a “claim” in Clause 8.1 shall apply to claims brought in any jurisdiction or forum, whether actual or threatened.

8.3 Subject to (and save as provided in) Clause 8.1, neither Party shall be liable for any loss of profit, loss of anticipated saving or any indirect, incidental, special or consequential damages, howsoever arising and even if it has been advised of the possibility of such loss or damage arising.

8.4 Subject to Clause 5.3, the liability of WaveOptics under the Contract is limited to the Price.

8.5 Nothing in the Contract shall exclude or restrict the liability of either Party for: (i) death or personal injury resulting from negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any liability which cannot be excluded or limited by law.

9. Intellectual Property Rights

9.1 Subject to Clauses 9.2 and 9.3 below, each Party shall retain all rights and ownership to any pre-existing Intellectual Property Rights.  In no event shall Supplier be granted any form of licence or assignment of, or any other rights in, any Intellectual Property Rights in WaveOptics Technology.

9.2 Supplier grants WaveOptics a non-exclusive, royalty free, worldwide licence to use any of Supplier’s pre-existing Intellectual Property Rights to the extent required to obtain full benefit from the Work.

9.3 All Intellectual Property Rights produced from or arising out of the performance of the Contract shall become the absolute property of WaveOptics and (a) to the extent that any such rights would otherwise vest in Supplier, Supplier assigns such rights to WaveOptics (with full title guarantee) and (b) Supplier shall do all necessary acts to ensure that such rights vest in WaveOptics by the execution of appropriate instruments or the making of agreements with third parties.

9.4 Supplier shall keep all information about WaveOptics Technology and WaveOptics’ business which Supplier is given, or learns through the performance of the Work, including the terms of the Contract confidential and shall not disclose any of such information to any third party.

10. General

10.1 Where the words “include(s)” or “including” are used in the Contract, they are deemed to have “without limitation” following them and any headings in the Contract shall not affect the interpretation of the Contract;

10.2 Nothing in the Contract shall be deemed to: (i) constitute a partnership, joint venture or agency arrangement of any kind between the Parties; (ii) create any employment arrangement with Supplier Personnel.

10.3 The Supplier shall maintain accurate books and records in compliance with any applicable laws in connection with the Work.  Supplier shall make such books and records available to WaveOptics upon reasonable request for the duration of the Work and for a period of 6 years thereafter.

10.4 In connection with the Work, the Supplier shall ensure that it has adequate procedures in place to comply with and shall comply with (i) the UK Bribery Act 2010 and US Foreign Corrupt Practices Act 1977; (ii) the Modern Slavery Act 2015; (iii) the Criminal Finances Act 2015; (iv) the US Export Administration Regulations; (v) U.S Department of Treasury’s Foreign Assets Control and EU sanctions programs; and (vi) end-user and end-use restrictions by the U.S and the EU.

10.5 Supplier warrants that, to the best of its knowledge, after due inquiry, neither the Goods nor any materials incorporated therein were produced or manufactured, in whole or in part, by criminal or forced labour or by any child under the age of fifteen (15) or the minimum age permitted by applicable law, whichever is higher.

10.6 It is envisaged that there will be no personal data, as defined in the General Data Protection Regulation (EU) 2016/679 (GDPR), transferred in the performance of the Work.  In the event that any personal data is to be transferred, the Supplier shall contact WaveOptics to discuss the further contractual protections required before any such transfer.

10.7 Neither Party shall assign or subcontract its rights or obligations under the Contract without the other Party’s consent.

10.8 If any provision, or part provision, of the Contract is held invalid, illegal or unenforceable by any court of competent jurisdiction such provision shall be severed, and the rest of the Contract shall remain in full force and effect.

10.9 No failure or delay by either Party to enforce any term of the Contract shall constitute a waiver of its rights.

10.10 Any obligations and duties, which by their nature extend beyond the expiration or termination of the Contract, shall survive the expiration or termination of the Contract.

10.11 Any notice to be given by either Party to the other may be served by email, by hand or by first class post to the address of the other Party set out in the Contract, or otherwise provided in writing.

10.12 Nothing in the Contract is intended to, nor shall it confer any rights on a third party.

10.13 The Contract shall be governed by and construed in accordance with the law of England and the Parties hereby submit to the exclusive jurisdiction of the English courts.