The following terms and conditions shall govern all sales of product and services of Westboro Photonics Inc. (“Westboro”) to a purchaser (the “Purchaser”) by a purchase order or any other agreement, in writing or otherwise (a “Purchase Order”).
1) Pricing – Unless otherwise set forth in a Purchase Order accepted by Westboro, prices for all product shall be in accordance with Westboro’s then current price list. Westboro reserves the right to amend its price list at any time or times without notice to the Purchaser. The Purchaser shall pay for all freight, insurance, taxes, duties, levies, loading charges, customs or similar charges on such product and its delivery to the Purchaser, whether or not the same is set forth in the Purchase Order.
2) Purchase Orders – All Purchase Orders from a Purchaser must be in writing or, in the case of telephone orders, followed by confirmation in writing, by fax or other electronic means acceptable to Westboro. Westboro reserves the right to delay shipment until written confirmation of the Purchase Order has been received by Westboro. A Purchase Order is not a commitment on the part of Westboro to supply the product, and is not an agreement of Westboro to supply, until accepted by an authorized officer of Westboro, evidenced by either a signed acknowledgement of order form or other written confirmation from Westboro, or by delivery of product to the carrier.
3) Cancellation Policy – All accepted Purchase Orders shall be final and the Purchaser shall have no right to terminate any such order, regardless of whether or not the product has then been delivered to a carrier. The Purchaser shall have no right to return any product. Westboro may, but is not obligated, to accept termination of a purchase order, or accept a return of product from the Purchaser, on terms and conditions acceptable to Westboro and acknowledged in writing by Westboro which terms and conditions shall include a twenty percent (20%) restocking fee.
4) Payment – Invoices for payment are due on issuance subject to authorized credit. Except as otherwise agreed to by Westboro in writing, all invoices on authorized credit are due net 30 days. Overdue invoices bear interest at a rate of 2% per month, compounded monthly, (equivalent to 26.8% per annum) from the date of invoice. Westboro reserves the right to require payment of the purchase price for product prior to delivery to a carrier. Westboro reserves the right to require payment to be secured by an irrevocable letter of credit or a bank guarantee acceptable to Westboro. Where payment is made by letter of credit or guarantee, all costs of collection shall be for Purchaser’s account. In the event that Westboro is required to bring legal action to collect delinquent accounts, Purchaser agrees to pay reasonable attorneys fees and costs of suit. Notwithstanding delivery to a carrier, Westboro shall retain title to all product until payment in full is received.
5) Delivery and Shipment – All product supplied are delivered EXW (Ex-Works) Westboro’s facilities Ottawa, Ontario, Canada. Risk of loss passes to the Purchaser on safe delivery to the carrier.
6) Delays in Shipment – Promises of shipment date made by Westboro shall not constitute a binding legal commitment by Westboro to ship on or before such date. Westboro makes every reasonable effort to ensure shipment on the promised date.
7) Separate Shipments – Each shipment of product shall be treated for billing and collection purposes as a separate and independent contract and Westboro shall have the right to invoice and collect payment on each shipment.
8) Non-Conforming Delivery – Purchaser shall notify Westboro of any visible defects, quantity shortages or incorrect product shipments within seven (7) days of receipt of the shipment. Failure to notify Westboro in writing of any visible defects in the products or of quantity shortages or incorrect shipments within such period shall be deemed an unqualified waiver of any rights to return products on the basis of visible defects, shortages or incorrect product.
9) Software License – Notwithstanding anything else herein contained, title to any software products, or any software installed with products or delivered with products, shall remain with Westboro and its licensors. All software is subject to the applicable license agreement which is included with the product. Purchaser shall be bound by the license agreement once the software is opened or installed.
10) Shared Risk Statement – Statements of compliance to any specification or standard (e.g. stated “Pass/Fail” results) are based on a ‘simple acceptance’ criterion. On such a criterion, acceptance limits are neither reduced nor expanded to account for the associated uncertainty of measurement. The uncertainty of calibration and observed deviation of the measurement obtained with the product under test from the reference value, is reported independently in the calibration certificate. This is also described as a ‘shared risk’ approach.
11) Warranties – Except as specified below, hardware products sold hereunder shall be free from defects in materials and workmanship and shall conform to Westboro’s published specifications or other specifications accepted in writing by Westboro for a period of
- two (2) years parts and labor for photometers and colorimeters (excluding lenses),
- one (1) year parts and labor for Westboro Photonics’ custom lens assemblies, and
- six (6) months parts and labor for third party, commercial off-the-shelf lenses and all other products.
The foregoing warranty does not apply to any products which have been subject to improper installation, repair (other than by Westboro), misuse, neglect, accident or modification or alteration. Westboro shall make the final determination as to whether its products are defective. Westboro’s sole obligation for products failing to comply with this warranty shall be, at its option, to either repair, replace or issue credit for the nonconforming product where: on or prior to the expiration of the warranty period Westboro has received written notice of any defect or nonconformity; (ii) after Westboro’s written authorization, Purchaser has returned the defective or nonconforming product to Westboro’s facilities in Ottawa, Ontario; and (iii) Westboro has determined that the product is defective or nonconforming and that such defect or nonconformity is not the result of improper installation, repair (other than repair by Westboro), misuse, neglect, accident or modification or alteration. The Purchaser shall be responsible for delivery of products returned to Westboro at Purchaser’s own expense and risk and shall prepay return shipping charges and insure the shipment or accept the risk of loss or damage during shipment. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WESTBORO DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS. All product returned under warranty shall be accompanied by a Returned Material Authorization (“RMA”) number which number must be clearly visible on the outermost package of the returned product. The RMA number is obtained by contacting Westboro prior to return of such product. Returned product without an RMA number will not be accepted by Westboro.
12) Mission Critical Disclaimer – Westboro does not warrant that Purchaser’s use of its products will be error free or that its products will not be subject to failure. The products of Westboro are not designed for use in: mission critical applications; in applications where error or non-performance might lead to catastrophic consequences including injury, death or property damage; or in applications where there is no design redundancy and periodic system verification protocols to verify system and component operation and failure.
13) Limited Liability – IN NO EVENT SHALL WESTBORO BE LIABLE FOR GENERAL OR SPECIFIC DAMAGES OTHER THAN THE COST OR REPLACEMENT OF PRODUCT SUPPLIED. IN NO EVENT SHALL WESTBORO BE LIABLE FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHER GENERAL OR SPECIFIC DAMAGES OR ANY LOSSES OR EXPENSES SUFFERED BY THE PURCHASER OR ANYONE ELSE, WHETHER OR NOT WESTBORO, OR ITS EMPLOYEES, OFFICERS, OR AGENTS, HAS BEEN INFORMED OF THE RISK OF SUCH LOSS OR EXPENSE AND WHETHER OR NOT SUCH LOSSES OR EXPENSES WERE FORESEEABLE AND WHETHER OR NOT SUCH DAMAGES OR LOSSES OR CLAIMED UNDER ANY THEORY OF LAW OR UNDER CONTRACT, STATUTE, TORT, IMPLIED DUTIES OR OTHERWISE OR DIRECTLY OR INDIRECTLY RELATED TO THE SUPPLY OF PRODUCT OR THIS AGREEMENT. THE AGGREGATE LIABILITY OF WESTBORO IN ANY WAY RELATING TO A SUPPLY OF PRODUCTS, IN ANY OCCURRENCE OR SERIES OF OCCURRENCES, SHALL BE LIMITED TO THE CONTRACTUAL VALUE OF THE PRODUCTS SUPPLIED IN THE PURCHASE ORDER.
14) Indemnity from Purchaser – The Purchaser shall indemnify and hold Westboro, its directors, officers, employees and agents harmless with respect to any general, specific, indirect, consequential, incidental, exemplary or punitive damage, liability or claim of any kind in connection with the loss of or damage to property and personal injury, including death, resulting from or in connection with the product supplied by Westboro or any act or failure to act by Westboro. The Purchaser shall defend at its own cost and expense any and all suits or proceedings brought against Westboro, its directors, officers, employees and agents or any of them, in connection with this indemnity.
15) Entire Agreement – These Terms and Conditions together with the order information constitute the entire agreement between Westboro and Purchaser pertaining to the supply of product by Westboro and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as specifically set forth herein. No supplement, modification, amendment, waiver or termination of these Terms and Conditions shall be binding unless executed in writing by Westboro and the Purchaser. In the event of a conflict between the provisions of these Terms and Conditions and any other agreement between Westboro and the Purchaser, other than one that explicitly overrides these Terms and Conditions, the provisions of these Terms and Conditions shall prevail. No provision or term or limitation set forth in these Terms and Conditions shall be excluded by any agreement between Westboro and the Purchaser unless the provision of these Terms and Conditions to be excluded is specifically identified.
Any standard conditions of purchase, or provision, term, condition, right, warranty, acknowledgment, or obligation set forth in the Purchaser’s purchase order, other than the order for product of Westboro, shall be deemed excluded and of no force or effect.
16) Laws of Ontario – This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the applicable laws of Canada excluding the law of conflicts and excluding the United Nations Convention of Contracts for the Sale of Goods and shall be treated in all respects as an Ontario contract. The Parties hereto irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario, Canada with respect to any and all disputes arising out of, pursuant to or relating to this Agreement or the supply of product and waives any right that it may have to assert the defence of forum non-conveniens in any suit, action or proceeding.
17) Excusable Delay – Where Westboro is delayed in performing or observing a covenant or obligation which is to be performed or observed by a specified date or within a particular time by reason of excusable delay, the date or period of time by or within which Westboro is to perform or observe such covenant or obligation will be extended by a period of time equal to the duration of the delay. As used herein “excusable delay” means any delay which is beyond the reasonable control of Westboro and which is not caused by any default or act of commission or omission of Westboro and is not avoidable by the exercise of reasonable effort or foresight by Westboro (including without limiting the generality of the foregoing, strikes or labor or industrial disturbances, civil disturbances, acts, orders, legislation, regulations or directives of any governmental or other public authorities, acts of public enemies, war, terrorist attacks, riots, sabotage, blockades, embargoes, lightning, earthquakes, fire, storms, hurricanes, floods, wash-outs, explosions, acts of God and delays caused by the Purchaser).
18) Export Regulations – Purchaser agrees to comply fully with all laws and regulations concerning the purchase and sale of products. In particular, the Purchaser agrees to comply with the export laws and regulations of Canada in so far as they apply to the sale of products. The products are licensed for delivery to the ultimate destination as shown on the shipment/invoice address and any contrary diversion is prohibited.
19) Partial Invalidity – If any provision of these Terms and Conditions or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of these Terms and Conditions, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, will not be affected thereby and each provision of these Terms and Conditions will be valid and enforced to the fullest extent permitted by law and be independent of every other provision of these Terms and Conditions.
Effective: December 2022
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