Corporate Resources

General Terms & Conditions of Sale

Version 2022.07.27

GENERAL – Precision Optical Transceivers (“hereinafter referred to as the “Seller”), and the Purchaser (“Buyer”) as named on the face of the Purchase Order agree that the following General Terms and Conditions of Sale apply to the entire Agreement between both Parties. All item(s) subsequently ordered pursuant to the Agreement must be referenced by the Buyer via the Seller’s Unique Quotation Identification Number to the latest revision on the face of its Purchase Order issued to the Seller.

ACCEPTANCE – The sale of any item is expressly conditional on Buyer’s acceptance of Seller’s General Terms and Conditions of Sale as stated herein and on the typed portion of the referenced quotation number, unless otherwise specified in writing. Provided that Seller’s General Terms and Conditions of Sale have not been previously accepted by Buyer, Buyer’s receipt of item(s) shipped under the Agreement is acceptance of Seller’s General Terms and Conditions of Sale. Buyer agrees that the General Terms and Conditions of Sale, and any other document attached or incorporated by reference to the Agreement shall prevail over any inconsistent provisions in any form or other paper submitted by Buyer.

ORDER OF PRECEDENCE – The rights and obligations of the Seller and Buyer shall be subject to and governed by the Agreement. In the event of an inconsistency between the provisions of the Agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order from the highest to lowest degree of precedence: (1) the Purchase Order; (2) any special provisions or terms and conditions on the face of the Purchase Order; (3) the General Terms and Conditions of Sale; (4) or any other document attached or incorporated by reference.

WAIVER – No waiver by Seller or Buyer of any of the provisions of the Agreement, except by law, is effective unless explicitly set forth in writing and signed by a duly authorized representatives of both Parties. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

DOCUMENTATION – Seller shall provide Buyer with documentation which is specifically identified in the Quotation as referenced on the face of the Purchase Order. Additional copies of documentation or requests for unique data documentation will cause Seller additional expense and may be made at Seller’s sole discretion available to Buyer at no additional cost.

TERMINATION AND SUSPENSION – Provided that Seller receives adequate written notice from Buyer, Buyer may terminate, suspends performance or makes any changes under the Agreement at Buyer’s convenience subject to all reasonable charges, which charges shall be solely determined by Seller.

CHANGES – Seller and Buyer shall mutually agree to any changes in writing. All charges and shipping delays resulting from such changes shall be solely determined by Seller and shall be binding upon Buyer.

NOTICE – Any notices required or permitted to be given by the Seller or Buyer hereunder the Agreement shall be in writing and shall be deemed to be duly given when either received electronically via e-mail, sent by mail to each Parties address as stated on the face of the Purchase Order, or when delivered by hand, or by facsimile transmission if the transmittal report indicates that the facsimile was sent successfully.

DELIVERY AND FINAL ACCEPTANCE – All sales between Seller and Buyer under the Agreement are either FOB Origin, EXW or FCA per the INCOTERMS of 2020, unless otherwise specified in writing. Any shipping arrangements made by Seller shall be charged to Buyer’s account. All claims for loss or damage, after risk of loss has passed to Buyer, shall be filed by Buyer with the carrier. Buyer shall be liable to Seller for the full price of the item(s), irrespective of loss or damage in transit. Seller shall not be required to provide freight cost receipts to Buyer at the time of invoicing. Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the item(s). Unless Buyer provides Seller with a written notice of any claim, shortages, or defects in the item(s) within five (5) calendar days after receipt of shipment, such item(s) shall be deemed finally inspected, checked and accepted by Buyer. Except as otherwise expressly stated in the Agreement, title to all item(s) furnished under the Agreement shall pass to Buyer upon final acceptance, regardless of when or where Buyer takes physical possession of the item(s). In the absence of shipping and packing instructions, Seller shall use its own discretion in choice of carrier and method of packing. Seller shall not be responsible for insuring shipments unless specifically requested by Buyer, and any insurance so requested shall be at Buyer’s expenses and valuation.

WARRANTY – For a complete list of warranty terms, visit our warranty page here.

INTELLECTUAL PROPERTY AND PATENT INDEMNIFICATION – Seller shall defend any suits brought against the Buyer based on a claim that the item(s) sold and delivered by Seller constitute an infringement of a valid patent, copyright, trademark, or other intellectual property right arising out of the sell or delivery of an item under the Agreement, and shall pay any damages and reasonable costs awarded therein against Buyer, provided that Buyer promptly notifies Seller in writing and gives authority, information and assistance to Seller for the defense of such suit. If only the item(s) sold and delivered by Seller are held to be infringing in such suit and the item(s) use is enjoined, Seller shall, at Seller’s expense provide a commercially acceptable alternative, including, but not limited to, procuring for Buyer the right to continue using the item(s), replacing the item(s) with a non-infringing product or modifying the item(s) so that they become non-infringing. Buyer agrees that Seller shall not be liable, and that Buyer shall fully indemnify Seller, if infringement is based upon the use of the item(s) in connection with another product not sold and delivered by Seller, or in a manner for which the item(s) were not intended by the Seller, or if the item(s) were modified by or for the Buyer in a manner to cause the item(s) to become infringing.

ASSIGNMENT AND TRANSFER – (a) Neither Seller nor Buyer shall have the right to assign and transfer its rights or obligations under the Agreement except with the written consent of the other Party, provided, however, that a successor in interest by merger, acquisition, by operation of law, assignment, purchase, or otherwise of the entire business of either Party, shall acquire all interest of such Party hereunder. Any prohibited assignment shall be null and void. (b) There are no understandings, agreements, or representations, expressed or implied, not specified in the Agreement. (c) No action, regardless of form arising out of transactions under the Agreement, may be brought by either Party more than two (2) years after the cause of action has accrued. (d) No representative of Seller has any authority to modify the General Terms and Conditions of Sale unless the modification is contained in a written instrument signed by a duly authorized representative of Seller. (e) The Agreement is formed and shall be construed under the laws of the State of New York in the USA. (f) Any arbitration required in the performance of the contract shall occur in the State of New York in the USA. The enforcement of any award resulting from arbitration shall be governed by the rules of procedure in force in the State of New York in the USA. (g) All typographical and clerical errors in quotations and documentations may be corrected at any time by Seller.

IMPORT/EXPORT COMPLIANCE – Seller and Buyer represent and warrant that both Parties will comply with all applicable import/export laws, regulations and rules administered by the United States Bureau of Customs and Border Protection, the Bureau of Industry and Security, as well as all other applicable Federal, State or Local laws, regulations, or requirements of the United States Government and any other nation. Seller or Buyer will also obtain all applicable permits, licenses and written authorizations, if necessary, to perform both Parties obligations under the Agreement; and upon either Parties request, Seller or Buyer will provide copies of such permits, licenses and written authorizations. In addition, Seller or Buyer, as applicable, will also provide the ECCN, Schedule B and Harmonized Tariff codes assigned to the item(s) under the Agreement upon request.

COMPLIANCE WITH LAWS – Seller and Buyer represents and warrants that both Parties will comply with all applicable United States Government Federal, State or Local laws, regulations, or requirements; including, without limitation, and at each Parties own expense, with all applicable International laws and regulations, as well as the Federal, State or Local laws, regulations, or requirements of any other country and nation, which may apply to the item(s) and performance under the Agreement.

INDEMNIFICATION BY SELLER – 1) Seller shall defend any suits brought against the Buyer based on a valid claim for (a) property damage, (b) personal injury, including death, and (c) violations of applicable laws which arise out of Seller’s breach of obligations or responsibilities under the Agreement, or 2) failure to comply with applicable United States Federal, State and Local laws and regulations in the performance of the Agreement. Seller’s obligation hereunder is limited to insurance available to or provided by Seller. Seller will not waive any immunity under industrial insurance, whether arising out of statute or common law, to the extent of the indemnity set forth in the Agreement. Seller’s duty to defend any suit that may arise out of, or in connection with the performance or nonperformance of the Agreement by Seller, any defective item(s) sold and delivered by Seller, any valid patent, copyright, trademark, or other intellectual property right infringement by Seller, or any other breach of Seller’s obligations hereunder. Buyer agrees that Seller shall not be held liable, and that Buyer shall fully indemnify Seller, if Buyer fails to promptly notify Seller in writing and gives authority, information, and assistance to Seller for the defense of such suit.

FORCE MAJEURE – Neither Seller or Buyer shall be liable for any excess costs or other damages if the failure to perform arises out of causes beyond the reasonable control and without the fault or negligence of the Party alleging an event of Force Majeure. Seller or Buyer shall notify the other Party in writing within ten (10) calendar days after it becomes aware of any such cause. If the original delivery schedule is overcome by the Force Majeure event, then the Parties agree to negotiate in good faith a revised delivery schedule.

DISPUTES AND CLAIMS – Any dispute or claim between Seller and Buyer arising from or relating to the Agreement or performance under it shall be resolved amicably through discussions between the Parties attempting in good faith to negotiate a resolution. If the Parties fail to negotiate a resolution in good faith for any dispute or claim arising from or relating under the Agreement, either Party may seek resolution via arbitration. If the Parties are not successful in resolving the dispute through arbitration or one of the Parties refuses to participate in arbitration, the dispute or claim shall be resolved by litigation and may be brought before the State and/or Federal Courts of the State of New York in the USA. Until final resolution of any dispute or claim hereunder, Seller shall proceed diligently with the performance under the Agreement, unless otherwise directed by Buyer in writing.

LIMITATION OF LIABILITY – Seller shall not be liable for damages caused by delay in performance under the Agreement. The sole and exclusive remedy for breach of contract, warranty, negligence, strict liability, or otherwise shall be limited to repair or replacement under the standard warranty clause. In no event shall Seller’s liability for damages in any circumstances set forth in this clause exceed the price payable for the item(s) to be performed by Seller under the Agreement. The Agreement shall neither create for nor give to any third party any claim or right of action against Seller or Buyer which would not otherwise arise without the Agreement. Any, and all, allegedly defective item(s) claimed by Buyer must be returned, at Buyer’s sole expense, to Seller’s facility.

GOVERNING LAW – Seller and Buyer agree that the Agreement shall be construed in accordance with and governed by the laws of the State of New York in the USA without regard to conflict of laws rules. All actions or proceedings arising directly or indirectly from the Agreement shall be litigated only in the State and/or Federal Courts of the State of New York in the USA, and both Parties hereby consent to the jurisdiction and venue of such Courts, unless otherwise specified in writing.

SEVERABILITY – In the event any provision or clause of the Agreement between Seller and Buyer is unenforceable or invalid and conflicts with governing law, or if any arbitration panel or court of competent jurisdiction holds invalid any provision or clause of the Agreement, such provision or clause shall be deemed to be modified to reflect as nearly as possible the Parties intent. The remainder of the Agreement shall remain in full force and effect.

SURVIVAL – Any provisions of the Agreement between Seller and Buyer, which by their very nature would continue beyond the termination, cancellation, or expiration of the Agreement shall continue as valid and enforceable rights and obligations of the Parties and survive termination, cancellation, or expiration of the Agreement, unless otherwise specified in writing.

PRICE – Seller’s prices are based on labor and material costs prevailing on the date of the Agreement. Buyer is responsible for all costs of delivery, and Buyer is responsible for any costs of packaging other than Seller’s standard packaging and commercial container(s).

TAXES – Seller and Buyer agree that all Government charges upon the production, shipment and sale of the item(s) covered by the Agreement, including, but not limited to, use, occupation, export and import taxes, shall be paid by Buyer or, in lieu thereof, and Buyer shall furnish Seller with a valid tax exemption certificate or other evidence of exemption acceptable to the authority imposing the tax on Seller, unless otherwise specified in writing.

CREDIT TERMS – Provided that, in Seller’s opinion, there is a material adverse change in Buyer’s financial condition and/or Buyer has not, within the agreed upon time, fully paid for items previously shipped under this or any another Agreement with Seller, Seller reserves the right to revoke Buyer’s credit and/or suspends performance on this or any other Agreement and future shipments. Buyer shall not set off or recoup invoiced amounts or any portion thereof against sums that are due or may become due from Seller.

LATE PAYMENTS – All discount periods to Buyer, if any, begin on the invoice date and all payments are due within thirty (30) days after the invoice date, and/or in accordance with the applicable INCOTERMS of 2020 under the Agreement. A service charge of one-point-five percent (1.5%) shall be charged for each month and portion thereof that payments are received later than the agreed upon thirty (30) days after the invoice date, and/or in accordance with the applicable INCOTERMS of 2020 under the Agreement. Seller and Buyer agree that the laws of the State of New York in the USA govern the Agreement. However, if it is judicially determined that a different law governs this clause of the Agreement, the service charge shall be the maximum amount permitted under such law.

GENERAL TERMS AND CONDITIONS OF PROCUREMENT

Version 2022.07.27

1. GENERAL – The Supplier/Vendor/Manufacturer (hereinafter referred to as the “Seller”), and Precision Optical Transceivers (hereinafter referred to as the “Buyer”) as named on the face of the Purchase Order agree that the following General Terms and Conditions of Procurement apply to the entire Agreement between both Parties. All item(s) subsequently ordered pursuant to the Agreement must be referenced by the Buyer via the Seller’s Unique Quotation Identification Number to the latest revision on the face of its Purchase Order issued to the Seller.

2. ACCEPTANCE – The sale of any item is expressly conditional on Seller’s acceptance of Buyer’s General Terms and Conditions of Procurement as stated herein and on the typed portion of the Purchase Order, unless otherwise specified in writing. Provided that Buyer’s General Terms and Conditions of Procurement have not been previously accepted by Seller, Seller’s shipped and delivered item(s) under the Agreement is acceptance of Buyer’s General Terms and Conditions of Procurement. Seller agrees that the General Terms and Conditions of Procurement, and any other document attached or incorporated by reference to the Agreement shall prevail over any inconsistent provisions in any form or other paper submitted by Seller.

3. ORDER OF PRECEDENCE – The rights and obligations of the Seller and Buyer shall be subject to and governed by the Agreement. In the event of an inconsistency between the provisions of the Agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order from the highest to lowest degree of precedence: (1) the Purchase Order; (2) any special provisions or terms and conditions on the face of the Purchase Order; (3) the General Terms and Conditions of Procurement; (4) or any other document attached or incorporated by reference.

4. WAIVER – No waiver by Seller or Buyer of any of the provisions of the Agreement, except by law, is effective unless explicitly set forth in writing and signed by a duly authorized representatives of both Parties. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

5. DOCUMENTATION – Seller shall provide Buyer with documentation which is specifically identified on the face of the Purchase Order. Additional copies of documentation or requests for unique data documentation may be made available to Buyer at no additional cost.

6. TERMINATION AND SUSPENSION – Provided that Seller receives adequate written notice from Buyer, Buyer may terminate, suspends performance, or makes any changes under the Agreement at Buyer’s convenience subject to all reasonable charges determined between both Parties.

7. CHANGES – Seller and Buyer shall mutually agree to any changes in writing. All charges and shipping delays resulting from such changes shall be determined between both Parties.

8. NOTICE – Any notices required or permitted to be given by the Seller or Buyer hereunder the Agreement shall be in writing and shall be deemed to be duly given when either received electronically via e-mail, sent by mail to each Parties address as stated on the face of the Purchase Order, or when delivered by hand, or by facsimile transmission if the transmittal report indicates that the facsimile was sent successfully.

9. DELIVERY AND FINAL ACCEPTANCE – All sales between Seller and Buyer under the Agreement are either FOB Destination, DAP or DDP per the INCOTERMS of 2020, unless otherwise specified in writing. Any shipping arrangements made by Seller, without the consent and approval of Buyer, shall be at Seller’s sole cost and expense. All claims for loss or damage, even after risk of loss and title has passed to Buyer, shall be filed by Seller with the carrier. Buyer shall not be liable to Seller for the full price of the item(s), irrespective of loss or damage in transit. Seller, if applicable, shall be required to provide any freight cost receipts to Buyer at the time of invoicing. Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the item(s). Unless Buyer provides Seller with a written notice of any claim, shortages, or defects in the item(s) within ten (10) calendar days after receipt of shipment, such item(s) shall be deemed finally inspected, checked and accepted by Buyer. Except as otherwise expressly stated in the Agreement, title to all item(s) furnished under the Agreement shall pass to Buyer upon final acceptance, regardless of when or where Buyer takes physical possession of the item(s). In the absence of shipping and packing instructions, Seller shall use its own discretion in choice of carrier and method of packing. Seller shall be responsible for insuring shipments unless specifically instructed by Buyer not to do so, and any insurance so requested shall be at Seller’s expenses and valuation.

10. WARRANTY – Seller carries a lifetime advanced exchange warranty for all optical transceiver products. If any product is deemed defective, Seller will replace the item(s) free of charge. This advanced replacement is offered with shipping costs covered by Seller. The lifetime advanced exchange warranty is only applicable to the original Buyer of the equipment. Failure of equipment due to misuse, exceeding maximum input optical power specs, incorrect electrical voltages, product modification, abuse, neglect/mishandling, or improper environment exposure voids the warranty in its entirety. Seller disclaims any liabilities or warranties, expressed or implied, beyond the remedies provided as stated in the lifetime warranty. Seller is not liable to the Buyer of a product for any damages, expenses, or lost revenues/savings/profits exceeding the original amount paid for the product. Seller warrant that all optical accessories, including fiber jumpers/cables, tuning modules, EDFA modules, DCM modules and Mux/Demux modules are free from defects in materials and workmanship for ten (10) years from the date of delivery. Damages resulting from abuse, accident, modifications, and unauthorized repairs are not cover under this warranty. Seller’s lifetime warranty excludes consumable products such as Click Clean Fiber Cleaners unless failure has occurred due to a defect in materials or workmanship and, damage resulting from abuse, accident, modifications, unauthorized repairs or other causes that are not defects in materials and workmanship.

11. INTELLECTUAL PROPERTY AND PATENT INDEMNIFICATION – Seller shall defend any suits brought against the Buyer based on a claim that the item(s) sold and delivered by Seller constitute an infringement of a valid patent, copyright, trademark, or other intellectual property right arising out of the sell or delivery of an item under the Agreement, and shall pay any damages and reasonable costs awarded therein against Buyer, provided that Buyer promptly notifies Seller in writing and gives authority, information and assistance to Seller for the defense of such suit. If only the item(s) sold and delivered by Seller are held to be infringing in such suit and the item(s) use is enjoined, Seller shall, at Seller’s expense provide a commercially acceptable alternative, including, but not limited to, procuring for Buyer the right to continue using the item(s), replacing the item(s) with a non-infringing product, or modifying the item(s) so that they become non-infringing. Buyer agrees that Seller shall not be liable, and that Buyer shall fully indemnify Seller, if infringement is based upon the use of the item(s) in connection with another product not sold and delivered by Seller, or in a manner for which the item(s) were not intended by the Seller, or if the item(s) were modified by or for the Buyer in a manner to cause the item(s) to become infringing.

12. ASSIGNMENT AND TRANSFER – (a) Neither Seller nor Buyer shall have the right to assign and transfer its rights or obligations under the Agreement except with the written consent of the other Party, provided, however, that a successor in interest by merger, acquisition, by operation of law, assignment, purchase, or otherwise of the entire business of either Party, shall acquire all interest of such Party hereunder. Any prohibited assignment shall be null and void. (b) There are no understandings, agreements, or representations, expressed or implied, not specified in the Agreement. (c) No action, regardless of form arising out of transactions under the Agreement, may be brought by either Party more than two (2) years after the cause of action has accrued. (d) No representative of Buyer has any authority to modify the General Terms and Conditions of Procurement unless the modification is contained in a written instrument signed by a duly authorized representative of Buyer. (e) The Agreement is formed and shall be construed under the laws of the State of New York in the USA. (f) Any arbitration required in the performance of the contract shall occur in the State of New York in the USA. The enforcement of any award resulting from arbitration shall be governed by the rules of procedure in force in the State of New York in the USA. (g) All typographical and clerical errors in purchase order and documentations may be corrected at any time by Buyer.

13. IMPORT/EXPORT COMPLIANCE – Seller and Buyer represent and warrant that both Parties will comply with all applicable import/export laws, regulations and rules administered by the United States Bureau of Customs and Border Protection, the Bureau of Industry and Security, as well as all other applicable Federal, State or Local laws, regulations, or requirements of the United States Government and any other nation. Seller or Buyer will also obtain all applicable permits, licenses and written authorizations, if necessary, to perform both Parties obligations under the Agreement; and upon either Parties request, Seller or Buyer will provide copies of such permits, licenses and written authorizations. In addition, Seller or Buyer, as applicable, will also provide the ECCN, Schedule B and Harmonized Tariff codes assigned to the item(s) under the Agreement upon request.

14. COMPLIANCE WITH LAWS – Seller and Buyer represents and warrants that both Parties will comply with all applicable United States Government Federal, State or Local laws, regulations, or requirements; including, without limitation, and at each Parties own expense, with all applicable International laws and regulations, as well as the Federal, State or Local laws, regulations, or requirements of any other country and nation, which may apply to the item(s) and performance under the Agreement.

15. INDEMNIFICATION BY SELLER – 1) Seller shall defend any suits brought against the Buyer based on a valid claim for (a) property damage, (b) personal injury, including death, and (c) violations of applicable laws which arise out of Seller’s breach of obligations or responsibilities under the Agreement, or 2) failure to comply with applicable United States Federal, State and Local laws and regulations in the performance of the Agreement. Seller’s obligation hereunder is not limited to insurance available to or provided by Seller. Seller will waive any immunity under industrial insurance, whether arising out of statute or common law, to the extent of the indemnity set forth in the Agreement. Seller’s duty to defend any suit that may arise out of, or in connection with the performance or nonperformance of the Agreement by Seller, any defective item(s) sold and delivered by Seller, any valid patent, copyright, trademark, or other intellectual property right infringement by Seller, or any other breach of Seller’s obligations hereunder. Buyer agrees that Seller shall not be held liable, and that Buyer shall fully indemnify Seller, if Buyer fails to notify Seller within reasonable time in writing and gives authority, information, and assistance to Seller for the defense of such suit.

16. INSURANCE – Unless otherwise agreed upon between Seller and Buyer in writing, Seller shall maintain during the term of this Agreement; (a) workers compensation insurance as prescribed by the law of the state or nation in which the Agreement is performed; (b) employer’s liability insurance with limits of at least $1,000,000 for each occurrence; (c) Commercial General Liability insurance with limits of at least $1,000,000 per occurrence. Any other coverage available to Buyer shall apply on an excess basis. Seller’s obligation to obtain the foregoing insurance does not waive or release Seller’s liabilities or duties to indemnify under this Agreement.

17. FORCE MAJEURE – Neither Seller or Buyer shall be liable for any excess costs or other damages if the failure to perform arises out of causes beyond the reasonable control and without the fault or negligence of the Party alleging an event of Force Majeure. Seller or Buyer shall notify the other Party in writing within ten (10) calendar days after it becomes aware of any such cause. If the original delivery schedule is overcome by the Force Majeure event, then the Parties agree to negotiate in good faith a revised delivery schedule.

18. SUBSTITUTION – Seller agrees not to substitute materials or other components of any item(s) sold and delivered to Buyer, without the written consent from Buyer.

19. CERTIFICATION OF AUTHENTICITY AND TRACEABILITY – Seller certifies to Buyer that all item(s) sold and delivered under the Agreement are genuine, new and unused. Seller further certifies that all material used to make the item(s) is traceable to the point of manufacture and that complete material origin is known and can be furnished to Buyer upon request. Seller shall obtain certification documents from all of Seller’s suppliers, vendors, or manufacturers when applicable, and retain such documentation for a minimum of five (5) years. Seller will have a documented procedure that defines the method for controlling records that are created by and/or retained by Seller.

20. DISPUTES AND CLAIMS – Any dispute or claim between Seller and Buyer arising from or relating to the Agreement or performance under it shall be resolved amicably through discussions between the Parties attempting in good faith to negotiate a resolution. If the Parties fail to negotiate a resolution in good faith for any dispute or claim arising from or relating under the Agreement, either Party may seek resolution via arbitration. If the Parties are not successful in resolving the dispute through arbitration or one of the Parties refuses to participate in arbitration, the dispute or claim shall be resolved by litigation and may be brought before the State and/or Federal Courts of the State of New York in the USA. Until final resolution of any dispute or claim hereunder, Seller shall proceed diligently with the performance under the Agreement, unless otherwise directed by Buyer in writing.

21. LIMITATION OF LIABILITY – Buyer shall not be liable by reason of Buyer’s breach or termination of this Agreement or for any Buyer acts or omissions in connection with this Agreement for any special, incidental or consequential damages of any kind, however caused, including, but not limited to, loss of profits or revenue, loss of data, item interruption, or any claims or demands against Seller by any other entity, whether such remedy is sought in contract, warranty, negligence, strict liability, or otherwise. In no event shall Buyer’s liability for damages in any circumstances set forth in this clause exceed the price payable for the item(s) to be performed by Seller under the Agreement. The Agreement shall neither create for nor give to any third party any claim or right of action against Seller or Buyer which would not otherwise arise without this Agreement.

22. GOVERNING LAW – Seller and Buyer agree that the Agreement shall be construed in accordance with and governed by the laws of the State of New York in the USA without regard to conflict of laws rules. All actions or proceedings arising directly or indirectly from the Agreement shall be litigated only in the State and/or Federal Courts of the State of New York in the USA, and both Parties hereby consent to the jurisdiction and venue of such Courts, unless otherwise specified in writing.

23. SEVERABILITY – In the event any provision or clause of the Agreement between Seller and Buyer is unenforceable or invalid and conflicts with governing law, or if any arbitration panel or court of competent jurisdiction holds invalid any provision or clause of the Agreement, such provision or clause shall be deemed to be modified to reflect as nearly as possible the Parties intent. The remainder of the Agreement shall remain in full force and effect.

24. SURVIVAL – Any provisions of the Agreement between Seller and Buyer, which by their very nature would continue beyond the termination, cancellation, or expiration of the Agreement shall continue as valid and enforceable rights and obligations of the Parties and survive termination, cancellation, or expiration of the Agreement, unless otherwise specified in writing.

25. PRICE – Seller’s prices to Buyer are based on labor and material costs, and shall cover all item(s) sold and delivered by Seller to satisfy the requirements under the Agreement. Buyer will not be liable for extra charges of any kind, unless otherwise specified in writing.

26. TAXES – The prices in the Agreement include, and Seller shall pay, all taxes, impositions, charges and exactions imposed on or measured by this Agreement, except for applicable sales and use taxes that are separately stated on Seller’s invoice. Prices shall not include any taxes, impositions, charges, or exactions for which Buyer has furnished a valid exemption certificate or other evidence of exemption, unless otherwise specified in writing.

27. PAYMENTS – Payment of each submitted invoice shall be made by Buyer within forty-five (45) days following receipt of each invoice, provided however, that the Buyer may withhold an appropriate portion of the payment until any dispute or claim was resolved under the Agreement. Payment by Buyer shall be deemed to have been made for the purpose of meeting the forty-five (45) day requirements on the date Buyer deposited the payment via electronic funds payment. Final payment shall not release Seller from any warranty and indemnification provisions contained in this Agreement. Seller shall retain, for a minimum of five (5) years following the expiration or termination of this Agreement, accurate documentation of all matters that relate to the item(s) sold and delivered to Buyer, and shall make such records available to Buyer upon request.

SOFTWARE TERMS & CONDITIONS

Version 2022.07.27

1. DEFINITIONS

1.1. “Add-on” means any development that adds new and independent functionality, but does not modify existing Precision functionality, and is developed using Precision application programming interfaces or other Precision code that allows other software products to communicate with or call on Precision Software.

1.2. “Affiliate” means any legal entity in which Precision or Customer, directly or indirectly, holds more than 50% of the entity’s share or voting rights. Any legal entity will be considered an Affiliate for only such time as that interest is maintained.

 1.3. “Agreement” means the agreement as defined in the Purchase Order, Quote and/or Invoice.

1.4. “Designated Unit” means information technology devices (e.g., hard disks, mobile devices, central processing units) identified by Customer that have been officially made known to the public as appropriate for Use or interoperation with the Software.

1.5. “Export Laws” means all applicable import, export control and sanctions including, but without limitation, the laws of the United States and United Kingdom.

1.6. “Intellectual Property Rights” means patents of any type, design rights, copyrights, trade secrets, confidentiality rights, trademarks, trade names and any other intangible property rights, whether registered or unregistered, including applications (or rights to apply) and registrations for any of the foregoing, in any country, arising under GTCs for Precision Software and Support.

1.7.  “Precision” represents Precision Optical Transceivers, Inc. and Affiliates.

1.8. “Quote or Purchase Order” means the applicable ordering document for Precision Software and/or Support that references these GTC.

1.9. “Representatives” means any affiliates, employees, contractors, sub-contractors, legal representatives, accountants, or other professional advisors.

1.10. “Precision Materials” means any software, programs, tools, systems, data, or other materials provided, developed, or made available by Precision in the course of performance. This includes but is not limited to the Software, Precision Support and Documentation delivered to Customer.

1.11. “Precision Support” means Precision’s then current support offering, such as software maintenance, made available to Customer, as stated in the Quote, Purchase Order or Invoice.

1.12. “Software” means all software products licensed and delivered to the Customer by Precision and any new releases, updates or versions thereof made available by Precision.

1.13. “Taxes” means all transactional taxes, local sales tax, value added tax, goods, and services tax, use tax, property tax, excise tax, service tax or other similar taxes.

1.14. “Use” means to activate the processing capabilities of the Software, load, execute, access, employ the Software, or display information resulting from such capabilities.

2. GRANT USE RIGHTS AND RESTRICTIONS

2.1 Precision hereby grants to Customer a non-exclusive, non-transferable  license (except for subscription based licenses) to Use the Software and other Precision Materials in connection with the use of the Product. Customer may only use the Licensed Software for its own use but may not translate or modify the Licensed Software or incorporate it into other software or products. Customer also may not transfer, resell, loan, or sublicense the Licensed Software to any third party, in whole or in part, in any form, whether modified or unmodified.  The Customer may use Precision Software and Precision Materials world-wide, except in countries where such use is prohibited by Export Laws.

2.2. Customer agrees to install the Software only on Designated Units located at Customer’s facilities and in Customer’s direct possession. With advance written notice to Precision, the devices may also be located in the facilities of an Affiliate and be in the Affiliate’s direct possession. Customer must be appropriately licensed as stated in Use Terms for any individuals that Use the Software, including employees or agents of Affiliates. If Customer receives licensed Software that replaces previously licensed Software, its rights under the Agreement regarding the previously licensed Software end when it deploys the replacement Software for Use on Designed Units.

3. DELIVERY

Subject to the Export Law provisions of these GTCs, Precision makes the Software available for download from a network at the Customers own cost and Customer is responsible for the cost of downloading the Software.

4. PAYMENT TERMS AND TAXES

4.1. Payment Terms

Customer shall make payment (plus applicable Taxes) as stated on the invoice within 30 days of purchase. If Customer does not pay in accordance with the terms of the Agreement, Precision may suspend Support until payment is made.

4.2. Taxes

All fees and other charges are subject to applicable taxes, which will be charged for and payable in addition to fees under the Agreement.

5. TERM AND TERMINATION

5.1. Term

The Agreement and the license granted hereunder become effective as of the date specified on the invoice and shall remain in effect for 12-month.  Each term shall be renewed for subsequent periods of the same length as the initial term upon issuance of purchase order or signature on quote.  Upon customer request, automatic renewal may be setup for subsequent periods of the same length as the initial term.  Under automatic renewal terms, termination may not occur unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current term.

5.2. Termination of the Agreement

Company may terminate this Agreement if Customer is in default of any of the terms and conditions of this Agreement and fails to correct such default within ten (10) days after written notice thereof from Company.

6. WARRANTY

COMPANY LICENSES, AND CUSTOMER ACCEPTS, THE LICENSED SOFTWARE “AS IS.” COMPANY PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE LICENSED SOFTWARE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED SOFTWARE IS WITH CUSTOMER. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.

7. LIMITATION OF LIABILITY

COMPANY’S LIABILITY TO CUSTOMER UNDER ANY PROVISIONS OF THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID HEREUNDER BY CUSTOMER TO COMPANY. IN NO EVENT SHALL COMPANY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY.

8. INTELLECTUAL PROPERTY RIGHTS

8.1. Customer recognizes that Precision regards the Software as its proprietary information as confidential trade secrets of great value. Customer agrees not to provide or to otherwise make available in any form the Licensed Software, or any portion thereof, to any person other than employees of Customer without the prior written consent of Company. Customer further agrees to treat the software with at least the same degree of care with which Customer treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the software. Customer may not make any copies, in any sort, of the software.

8.2. Company will defend at its own expense any action brought against Customer to the extent it is based on a claim that the Licensed Software used within the scope of the license granted hereunder infringe a United States patent, copyright, or other proprietary right of a third party. Company will pay any costs, damages or attorney fees finally awarded against Customer in such action which are attributable to such claim, provided Company is promptly notified in writing of such claim, may control the defense and/or settlement of such claim, and is provided with all requested assistance, information, and authority. In the event that a Licensed Software becomes, or in Company ‘s opinion is likely to become, the subject of a claim of infringement of a United States patent, copyright or trade secret, Company may at its option either secure Customer’s right to continue using the Licensed Software, replace or modify the Licensed Software to make them not infringing, or provide Customer with a refund of the license fee less depreciation on a five (5) year, straight-line basis. Company shall have no liability for any claim of patent, copyright or trade secret infringement based on the use of a Licensed Software in any form other than the original, unmodified form provided to Customer or the use of a combination of the Licensed Software with hardware, software or data not supplied by Company where the used Licensed Software alone in their original, unmodified form would not constitute an infringement. The foregoing states Customer’s entire liability for infringement or claims of infringement of patents, copyrights, or other intellectual property right.

9. CONFIDENTIALITY

The Customer and Precision acknowledge that the existence of these terms and conditions, pricing, and any other facts, whether oral or written, are regarded as confidential information. Each Party shall maintain confidentiality of all such information, and without obtaining the written consent of the other Party, it shall not disclose any relevant information to any third parties, except to the extent required by law, regulation, court order or regulatory agency.  The Customer and Precision will take steps to protect the disclosing party’s Confidential Information substantially similar to those steps that the receiving party takes to protect its own similar Confidential Information.

10. MISCELLANEOUS

10.1. Trade Compliance

Customer understands that Company is subject to regulation by agencies of the U.S. Government, including the U.S. Departments of Commerce and State, which prohibit export or diversion of certain technical products to certain countries. Customer warrants that it will comply in all respect with the export and re-export restrictions set forth in the export license for the Licensed Software and all other applicable export regulations. Customer agrees to indemnify and hold Company harmless from any loss, damages, liability or expenses incurred by Company as a result of Customer’s failure to comply with any export regulations or restrictions.

10.2. Notices

All notices in connection with this Agreement shall be in writing and may be given by certified, registered, or first-class mail or personally delivered at the address set forth on the front page. For purposes of this Agreement, a notice shall be deemed effective upon personal delivery to the party or if by mail five days after proper deposit in a mailbox.

10.3. Non-Assignment

Customer may not assign, sublicense, or otherwise transfer Precision Software or Support without the prior written consent of Precision.

10.4. Successors

This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives, successors and assigns except as otherwise provided herein.

10.5. Force Majeure

Any delay in performance (other than for payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.

10.6. Governing Law

This Agreement shall be governed and interpreted by the laws of the State of New York. Monroe County, New York shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to such personal and exclusive jurisdiction.

10.7 Severability

In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.

10.8. Entire Agreement

This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Agreement shall take precedence over any additional or conflicting terms which may be contained in Customer’s purchase order or Company’s order acknowledgment forms.

Warranty Policy

Version 2023.02.14

For a complete list of warranty terms, visit our warranty page here. 

Return & Refund Policy

Coming soon! 

Export Compliance Policy

Coming soon! 

Foreign & 3rd Party Export Transfer Agreement

Coming soon! 

End-User/End-Use Statement

Coming soon!