These Conditions apply to the sale of Products by WaveOptics. WaveOptics does not agree to contract on any terms and conditions which may appear, or be referred to, on any orders, purchase orders, forms or other documents or communications (whether printed or electronic) purporting to amend, vary, supersede or replace these Conditions unless accepted in writing by WaveOptics of these Conditions.
- “Conditions” means these terms and conditions, as may be amended by WaveOptics from time to time;
- “Customer” means the individual, firm, or company placing an Order to buy Products from WaveOptics pursuant to these Conditions;
- “Delivery Date” has the meaning given to it in clause 1;
- “Delivery Location” has the meaning given to it in clause 1;
- “Disclosing Party” has the meaning given to it in clause 1;
- “Inspection Period” has the meaning given to it in clause 1;
- “Intellectual Property Rights” means all right, title and interest (whether legal, equitable or otherwise) in and to copyright, rights in databases, patents, trademarks, service marks, design rights, get-up, logos, rights in goodwill, compilations, inventions, know-how, Proprietary Information, trade secrets, trade names, business names and domain names (and including future and contingent rights, rights to claim damages for prior infringement and other accrued rights of action, applications for registration of any of the foregoing and any rights to make such applications) together with any similar rights as may exist from time to time anywhere in the world;
- “Purchase Order Form” The Customers issuing document to activate the order;
- “Purchase Order Number” has the meaning given to it in clause 3;
- “Products” means those wave guide and/or light engine and/or module products and/or Statement of Work references listed on the Order Form;
- “Proprietary Information” has the meaning given to it in clause 1;
- “Receiving Party” has the meaning given to it in clause 1;
- “Specifications” has the meaning given to it in clause 2;
- “Statement of Works” means a programme of development works and specifications agreed with the Customer
- “WaveOptics” means WaveOptics Ltd. a company incorporated under the laws of England and Wales having its principal place of business at 141 Park Drive Milton Park, Abingdon, Oxfordshire, OX14 4RY, United Kingdom;
2.1 A Purchase Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions.
2.2 A Purchase Order shall only be deemed to be accepted when WaveOptics issues a written confirmation of acceptance of the Order, at which point a binding contract shall come into existence (such contract being subject to these Conditions) (a “Confirmed Order”). Each Confirmed Order shall represent a separate contract.
2.3 WaveOptics shall assign an order number (an “Order Number”) to the Confirmed Order and promptly notify that Order Number to the Customer. Each party shall use the relevant Order Number in all subsequent correspondence relating to that Confirmed Order.
2.4 A Confirmed Order shall be subject to the terms and conditions set out in these Conditions. Any other terms issued or provided by the Customer (whether with an Order Form or otherwise) shall not apply to any Confirmed Order (or the original Order).
3. Variations and cancellations
3.1 The Customer may cancel any Confirmed Order (in its entirety) by giving written notice to WaveOptics at any time prior to the first delivery date specified in the Confirmed Order, provided that in such an event the Customer shall be responsible for paying the reasonable costs incurred (included wasted costs) as a consequence of such cancellation (provided that WaveOptics shall use commercially reasonable efforts to minimize or mitigate such costs).
3.2 In the event that the Customer wishes to vary the terms of the Purchase Order, the Customer will issue a written variation to the Purchase Order, and WaveOptics will confirm acceptance.
4.1 WaveOptics shall deliver the Products specified in each Confirmed Order to the relevant delivery location set out in the Confirmed Order (the “Delivery Location”) on or before (but not more than seven (7) days before or after) the relevant delivery dates set out in the Confirmed Order (each the relevant “Delivery Date”).
4.2 Unless otherwise set out in the Confirmed Order:
(i) each delivery shall be made subject to Incoterms; and
(ii) risk in the relevant Ordered Products shall pass to the Customer on agreed shipping/delivery terms.
4.3 Notwithstanding the above, WaveOptics shall promptly notify the Customer if it is unable to meet the Delivery Date specified in a Confirmed Order and, in such an event, will promptly propose a revised Delivery Date. If that happens the Customer may either: accept the revised Delivery Date, propose an alternative (later) Delivery Date, or cancel the relevant Confirmed Order (in its entirety). The Customer shall be deemed to have accepted any revised Delivery Date proposed by WaveOptics unless it cancels the relevant Confirmed Order or proposes an alternative (later) Delivery Date within 3 (three) days of the notice of delay from WaveOptics.
4.4 WaveOptics shall not deliver the Products specified in each Confirmed Order by instalments unless so required under the Confirmed Order or with the prior written consent of WaveOptics. Where Products under a Confirmed Order are to be delivered by instalments, WaveOptics may invoice for the delivered Products separately.
4.5 If the Customer (or its designee) fails to take delivery of a Confirmed Order (provided that delivery occurs on the Delivery Date or with four (4) days before or after the Delivery Date) then, except where that failure or delay is caused by Wave Optic’s failure to comply with its obligations under these Conditions, WaveOptics shall store (or organize storage of) the relevant Products until delivery takes place, and shall be entitled to charge the Customer for all related costs and expenses reasonably incurred.
4.6 Each delivered Confirmed Order shall be accompanied by a delivery note from WaveOptics showing the Order Number, the date of the Confirmed Order, the type and quantity of Products included in the Confirmed Order and, in the case of a Confirmed Order being delivered by instalments, the outstanding balance of Products remaining to be delivered.
4.7 The parties agree that if, in respect of a Confirmed Order, WaveOptics delivers up to and including five percent (5%) more or less than the quantity of Products ordered, the Customer shall not be entitled to reject the Confirmed Order, but a pro rata adjustment shall be made to the Confirmed Order invoice value.
4.8 If the Customer requires WaveOptics to return any packaging materials to the Customer, that fact must be clearly stated on the delivery note accompanying the relevant Confirmed Order, and any such returns shall be at the Customer’s sole expense.
5. Acceptance and defective Products
5.1 The Customer shall inspect and test any delivered Products within five (5) days from the date of delivery (the “Inspection Period”). After the elapse of such period of time the Customer shall be deemed to have accepted the relevant delivered Products unless it has notified (in writing) WaveOptics otherwise (in that time period).
5.2 The Customer shall be entitled to refuse to accept any Products, provided that it notifies WaveOptics in the Inspection Period, if those Products delivered do not comply with the applicable specifications referenced in the relevant Confirmed Order (in each case, the “Specifications”) and in such an event the Customer may (in respect of the rejected delivered Products and as its sole and exclusive remedy):
(i) require WaveOptics to collect, replace and re-deliver the rejected Products as soon as reasonably possible; or
(ii) return the Products (and subject to having done so) require WaveOptics to repay the price paid for (or credit any invoices issued in respect of) the rejected Products.
5.3 Without prejudice to the above, WaveOptics undertakes to ensure that no more than ten percent (10%) of the quantity of each delivery will be rejected for failing to comply with the terms of these Conditions (or the applicable Confirmed Order).
5.4 WaveOptics shall not be liable for the failure of any Products to comply with the Specifications or for any rejection of the delivered Product if and to the extent that:
(i) the defect arises as a direct result of WaveOptics following any drawing, design or specification approved by the Customer (save where as a consequence of a manufacturing defect); or
6.1 The Customer shall pay all invoices (in the currency specified in the relevant invoice) within thirty (30) days of the date of receipt of the relevant invoice.
6.2 Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
6.3 All payments due to WaveOptics shall be made without any deduction whether in respect of withholding tax or otherwise. Customer will pay, in addition to the sums stated in the Order Form or otherwise payable hereunder any sales tax, value added tax, import charges and customs duties in respect of the sale, delivery or importation of the Products.
6.4 If the Customer disputes any invoice or other statement of monies due, it shall promptly notify WaveOptics in writing (and in any event within thirty (30) days of the date of receipt of the relevant invoice. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. If the parties have not resolved the dispute within thirty (30) days of the Customer having given the original notice to WaveOptics, the dispute shall be resolved in accordance with clause 12. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date.
7.1 Subject to clause 4.2, title in the Products ordered shall pass to the Customer only after full and final payment is received for such Products.
8.1 WaveOptics warrants that the delivered Products will meet the associated specifications agreed by the parties and will comply with the applicable Specification and be free from manufacturing defects on delivery and for a period of [ninety (90)] days thereafter. If the Customer identifies any breach of this warranty, the Customer’s sole and exclusive remedy shall be to require WaveOptics to repair or replace the defective Products.
8.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS CLAUSE, THE PRODUCTS ARE PROVIDED “AS IS” AND WAVEOPTICS DISCLAIMS ALL WARRANTIES, CONDITIONS AND OTHER TERMS, EXPRESS OR IMPLIED (AND WHETHER IMPLIED BY LAW, CUSTOM, COURSE OF TRADING OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.3 Nothing in these Conditions shall exclude or in any way limit any party’s liability for (a) fraud or fraudulent misrepresentation; (b) death or personal injury caused by its own or its contractors’, agents’ or employees’ negligence; or (c) breach of terms regarding title implied by s. 12 Sale of Goods Act 1979 and/or s. 2 Supply of Goods and Services Act 1982; or (d) any liability to the extent the same may not be excluded or limited as a matter of law.
9. Confidentiality; Proprietary Rights
9.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of WaveOptics includes all non-public information regarding design, features, functionality and performance of Products. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of its obligations under these Conditions or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is, and only to the extent it is, required to be disclosed by law.
9.2 WaveOptics shall own and retain all right, title and interest (including Intellectual Property Rights) in and to (a) the Products, and all improvements, enhancements or modifications thereto made by WaveOptics, (b) any software, applications, inventions or other technology developed in connection with the manufacture and supply of the Products, and (c) all intellectual property rights related to any of the foregoing. Notwithstanding anything to the contrary, WaveOptics shall have the right to collect and analyze feedback and suggestions provided by or on behalf of Customer in relation to the Products or otherwise and related technologies, and WaveOptics will be free (during and after the term hereof) to (i) use such feedback, suggestions, information and data to provide, improve and enhance the Products and other WaveOptics offerings and to manufacture, sell and exploit WaveOptics products, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. Nothing in these Conditions shall be construed as granting to or conferring on Customer any licence, right, title or interest in the Proprietary Information or Intellectual Property Rights of WaveOptics.
10.1 In addition to any other remedies it may have, WaveOptics may terminate a Confirmed Order by giving written notice to the Customer if:
(i) by giving written notice to the Customer if the Customer has not paid any invoice by the applicable due date and fails to remedy such non-payment within seven (7) days of being notified of such non-payment by WaveOptics;
(ii) if the other party materially breaches any of the terms or conditions of these Conditions and such breach is not cured within [thirty (30)] days of being given notice of that breach.
10.2 Upon termination all outstanding charges and fees due in respect of the Products shall immediately become due and payable.
10.3 All clauses of these Conditions which by their nature should survive termination will survive termination, including, without limitation, all rights to payment of charges and fees, confidentiality obligations, warranty disclaimers, and limitations of liability.
11. LIMITATION OF LIABILITY
11.1 WAVEOPTICS AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER OR ITS AFFILIATES WITH RESPECT TO ANY SUBJECT MATTER OF OR IN CONNECTION WITH THESE CONDITIONS OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY:
(i) FOR ANY LOSS OF PROFIT, LOSS OF ANTICIPATED SAVING, WASTED MANAGEMENT OR STAFF TIME OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR
(ii) FOR ANY MATTER BEYOND WAVEOPTICS’ REASONABLE CONTROL.
11.2 WAVEOPTICS’ MAXIMUM LIABILITY (WHICH SHALL INLCUDE ANY LIABILITY OF ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY UNDER OR IN RESPECT OF THESE CONDITIONS SHALL NOT EXCEED THE APPLICABLE TOTAL OF THE CHARGES PAYABLE UNDER THE CONFIRMED ORDER (EXCLUDING ANY SALES TAXES, VALUE ADDED TAXES AND ANY IMPORT OR CUSTOMS DUTIES).
12.1 If any provision of these Conditions is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Conditions will otherwise remain in full force and effect and enforceable.
12.2 These Conditions and any Confirmed Order are not assignable, transferable or sublicensable by the Customer except with WaveOptics’ prior written consent.
12.3 These Conditions are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Conditions (other than any prior representations made fraudulently), and all waivers and modifications must be in writing and signed by both parties, except as otherwise provided herein. Each party acknowledges that, in entering into these Conditions, it has not relied on any statement or representation not expressly set out in these Conditions.
12.4 No agency, partnership, joint venture, or employment is created as a result of these Conditions and Customer does not have any authority of any kind to bind WaveOptics in any respect whatsoever.
12.5 All notices to be given or made under these Conditions shall be given or made in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
12.6 No term of these Conditions is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to these Conditions.
12.7 Each party shall at all times ensure that it complies with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including, without limitation, the Bribery Act 2010.
12.8 These Conditions (and any Confirmed Order) and their construction, validity and performance and all non-contractual obligations arising from or connected with it shall be governed by the laws of England without regard to its conflict of laws provisions. The parties submit to the exclusive jurisdiction of the English courts in relation to any claim, dispute or difference concerning these Conditions and any Confirmed Order, provided that either party shall be entitled to apply to any court worldwide for injunctive and other remedies in order to protect or enforce its Proprietary Information or Intellectual Property Rights.