STANDARD TERMS AND CONDITIONS OF SALE

  1. Controlling terms and conditions

All purchases and sales of products, including all parts, spare parts and components, material, equipment or other goods to be delivered hereunder (the “Products”) between the buyer (the "Buyer") and Optomechanic Cube Ltd. (“3D Optix”), shall be governed exclusively by these terms and conditions of sale ("Terms of Sale").

These Terms of Sale shall constitute the entire agreement between the parties pertaining to the subject matter hereof, and shall supersede all prior or contemporaneous oral or written negotiations, agreements, understanding or representations with respect thereto. These Terms of Sale shall supersede any conflicting provision contained in any purchase order of Buyer. Unless otherwise agreed in writing, nothing contained in any purchase order of Buyer shall in any way modify or add any provision to these Terms of Sale. These Terms of Sale may not be amended and any provision hereof may not be waived in any way except by an instrument in writing signed by both parties.  

3D OPTIX HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY BUYER, WHETHER OR NOT CONTAINED IN ANY OF BUYER’S BUSINESS FORMS OR IN BUYER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO EFFECT. 

  1. Offers, order contracts

3D Optix' offers of Products on the 3D Optix website (www.3Doptix.com) (the "Site") are non-binding. Based on these Terms of Sale, orders placed with 3D Optix shall only be deemed contractual after they have been confirmed in writing or by email by 3D Optix or after 3D Optix has commenced with the fulfilment of the deliveries. Ancillary agreements and amendments must be confirmed in writing by 3D Optix.

Documentation relating to offers such as pictures, drawings, as well as weight and measure specifications are only approximations unless they are expressly specified as binding. Quotes, drawings, and other documentation remain physical and intellectual property of 3D Optix; Buyer may not make them available to third parties. If plans marked as confidential are provided by the Buyer, 3D Optix agrees to make them available to third parties only with the Buyer‘s express consent.

  1. Price; payment terms and charges

The prices for all Products shall be as set forth in the order confirmation sent by 3D Optix. Such prices shall be exclusive of VAT and all other. taxes, insurance and other charges referenced herein, all of which shall be paid by Buyer. 3D Optix shall submit an invoice to Buyer with each shipment of Products. Each invoice shall be due and payable in U.S. Dollars or EURO, subject to the option selected by the Buyer.

Buyer shall pay all shipment, transportation, handling, insurance, taxes (except for taxes based on 3D Optix’ income), license fees, import, export and customs fees and duties, tariffs and other charges related to the Products or services purchased hereunder. If Buyer fails to pay any invoice when due, 3D Optix may charge Buyer interest in an amount equal to the lesser of one and one-half percent (1.5%) , or the maximum permissible rate, per month on any past due balance. 3D Optix may withhold delivery of any Products or services at any time in which Buyer’s account is past due or exceeds its approved credit limit. If 3D Optix employs any legal process to recover any amount due and payable from Buyer hereunder, Buyer shall pay all costs of collection and reasonable attorney’s fees. 3D Optix may at any time, require full or partial payment in advance of delivery if 3D Optix believes the same to be warranted by the Buyer’s financial condition.

3D Optix is entitled to insure the ordered Products at Buyer‘s expense against theft, breakage, fire, water, and other damage provided Buyer itself cannot provide proof of itself having purchased appropriate insurance. The Buyer may not mortgage the Products to be delivered, nor pass any rights thereto to third parties as a security, nor make any dispositions to the detriment of any Products still property of 3D Optix except for actions taken in the context of regular business dealings.

3D Optix shall not be liable for any failure to deliver or for any delay in delivery to the extent the same is caused directly or indirectly by act of God, flood, accident, explosion, equipment or machinery breakdown, sabotage, strike or other labour disturbance, civil commotion, riot invasion, war, governmental act, restraint, or request, shortage of labour, fuel, power or raw materials, failure of normal sources of supplies, difficulty in obtaining or delays in obtaining transportation or manufacturing facilities, or any other cause beyond 3D Optix’ reasonable control.

3D Optix is freed of its performance obligation even in case of confirmed orders under circumstances where the delivery or partial delivery is made impossible by unpredictable obstacles outside 3D Optix' responsibility. Such reasons may be regulatory orders, higher power or supplies delivered late or defect.

  1. Title and risk of loss; acceptance.

Title to the Products sent to Buyer shall not pass to the Buyer unless the Buyer paid all amounts due to 3D Optix for the Products. The Buyer shall take (and hereby authorizes 3D Optix to take on the Buyer’s behalf) any and all actions, including the execution of any and all documents, which 3D Optix deems necessary or appropriate to protect the rights of 3D Optix in and to the Products until the purchase price is paid in full (including documents required to perfect 3D Optix' security interest in the Products). Buyer shall assume all risk of loss or damage upon delivery of the Products to the carrier.

The Buyer shall obtain all necessary governmental permits, licenses, approvals and consents in connection with the import, sale or use of the Products in the Buyer’s country or the country to which the Products are shipped.

All Products will be delivered EXW (Ex Works), at 3D Optix’ designated factory (INCOTERMS 2010). In no event shall 3D Optix be liable for any delay in delivery, or assume any liability in connection with shipment, nor shall the carrier be deemed an agent of 3D Optix. Failure of the Buyer to provide timely response to requests from the 3D Optix may also result in delivery delays which shall be excused hereunder. Buyer shall examine and test the Products contained in such shipment promptly upon receipt and before the products are used, and shall notify 3D Optix in writing of any defect or non-conformity within ten (10) days after receipt by Buyer. The Buyer shall be deemed to have accepted a Product if 3D Optix has not received a written notice of defect or nonconformity within ten (10) days after Buyer has received that Product. Failure by the Buyer to so notify 3D Optix shall constitute a waiver by the Buyer of all claims with respect to that Product.

  1. Changes.

3D Optix reserves the right to (a) make changes in Products without notice, and without any obligation to incorporate those changes in any Products previously delivered to Buyer and (b) ship to Buyer the most current Product, if applicable.

  1. Cancellation.

Any order for Products may be cancelled by Buyer by providing written notice to 3D Optix. Unless prohibited under applicable law, any order cancellation (other than due to a defect) will be subject to reasonable cancellation charges including, but not limited to, non-recurring engineering expenses, cancellation costs payable by 3D Optix to its suppliers, and any other costs incurred by 3D Optix relating to such cancellation. 3D Optix will use commercially reasonable efforts to reduce such cancellation costs by reallocating materials to other projects and/or returning surplus material to, or cancelling orders with, its suppliers. In no event shall the Buyer be liable for more than the contract price of the cancelled Products.

  1. Returns.

Any order for standard Products may be returned to 3D Optix for credit within thirty (30) days of the initial invoice date. Buyer must ship the Product back in its original condition and in the original or equivalent packaging, freight prepaid. 3D Optix shall not be responsible for any damage occurring in transit. Buyer bears all risk of loss or damage to the returned Products until delivery at 3D Optix' designated facility. Any return shipment received by 3D Optix whose contents are not received in their original condition, may be reshipped by 3D Optix to Buyer.

  1. Proprietary rights.

As between Buyer and 3D Optix, 3D Optix retains all right, title and interest in and to the intellectual property rights, all inventions, ideas, processes, methods, know-how, skills and techniques developed, discovered or conceived by 3D Optix or its employees, including without limitation those developed and/or used in connection with the manufacture of the Products or performing services hereunder (collectively, the “3D Optix Rights”). Such rights include, but are not limited to, patent rights, copyrights, trade secret rights, trademark rights, mask work rights and other proprietary rights throughout the world. 3D Optix hereby grants to Buyer a nonexclusive, nontransferable, limited license to use the 3D Optix Rights in connection with the Products.

  1. Agreement not to replicate.

The Buyer may not copy, replicate or reverse engineer the Products, in whole or in part, use the Products as tools or molds, or permit such actions by any third party. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY ARE ENTERING INTO THIS AGREEMENT BASED ON THE UNDERSTANDING THAT THE PRICE FOR THE PRODUCTS TO BE PROVIDED HAS BEEN SET TO REFLECT THE FACT THAT BUYER AGREES NOT TO COPY OR REPLICATE PRODUCTS, TO USE PRODUCTS AS TOOLS OR MOLDS, OR TO PERMIT SUCH ACTIONS BY ANY THIRD PARTY, AND IF NOT SO ACKNOWLEDGED AND AGREED, THE PRICES FOR THE PRODUCTS WOULD HAVE BEEN SUBSTANTIALLY HIGHER.

  1. Warranty; disclaimer of warranty.

3D Optix warrants the Products sold hereunder free against defects in material and workmanship, subject to normal use and service, for a period of twelve (12) months from the date of shipment. 3D Optix' sole obligation under the foregoing warranty shall be to replace any defective or nonconforming Product or part thereof which fails during the warranty period, provided that Buyer has promptly reported such failure to 3D Optix in writing (prior to the end of the warranty period), and that 3D Optix, upon inspection, establishes to its satisfaction that the component is in fact defective in materials or workmanship. Upon 3D Optix' request, the Buyer shall return defective goods to the Company in accordance with 3D Optix' shipping instructions; compliance with said instructions shall be a condition of this warranty. The Buyer shall be responsible for all costs of transportation, removal and reinstallation. 3D Optix shall not be responsible for any damage occurring in transit. Buyer bears all risk of loss or damage to the Products until delivery at 3D Optix’s designated facility. 3D Optix shall pay for shipment back to Buyer for Products replaced under warranty. Products or components replaced under warranty are warranted for the remaining unexpired duration of the original Warranty Period for such Products or components. The foregoing warranty does not apply to Products or any component of the Products which 3D Optix reasonably believes are (a) repaired, modified or altered by any party other than 3D Optix; (b) used in conjunction with equipment not provided or authorized by 3D Optix; (c) subjected to unusual stress, improper installation, misuse, abuse, tampering, accident, contamination, or negligence in use, storage, transportation or handling (including any failure to maintain appropriate environmental conditions as specified by 3D Optix for a particular Product); (d) damaged due to improper installation, misuse, abuse, or storage; (e) identified by 3D Optix as a pre-production product, alpha, beta or similar product or a prototype; (f) repair or replacement due to normal wear and tear; or (g) specials, modifications, or customized items meeting the specifications provided by Buyer.

Unless otherwise agreed, the foregoing warranty applies only so long as the Products remain in use in the country of purchase. To the extent the Products are removed from the country of purchase, the foregoing warranty may be voided at 3D Optix’ discretion.

THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, REGARDING THE PRODUCTS. 3D OPTIX EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDY SET FORTH IN THIS PARAGRAPH SHALL BE THE SOLE REMEDY OF THE BUYER FOR ANY FAILURE OF 3D OPTIX TO CONFORM WITH SUCH WARRANTY AND THE BUYER SHALL HAVE NO CLAIM, EXCEPT AS AFORESAID, WHETHER BASED ON CONTRACT, NEGLIGENCE, PRODUCTS LIABILITY OR OTHERWISE, REPAIR OR REPLACEMENT.

Representations and warranties made by any person including distributors, dealers and representatives of 3D Optix which are inconsistent or in conflict with the terms of this warranty shall not be binding on 3D Optix unless reduced to writing and approved by an expressly authorized officer of 3D Optix.

The foregoing warranty is for the benefit of the original Buyer only and shall not be extended to any other person except with 3D Optix' prior written consent.

  1. Limitation of liability.

TO THE FULL EXTENT PERMISSIBLE BY LAW, 3D OPTIX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

TO THE FULL EXTENT PERMISSIBLE BY LAW, 3D OPTIX WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY 3D OPTIX PRODUCTS (INCLUDING SOFTWARE), SERVICE, OR FROM ANY INFORMATION, CONTENT, MATERIALS, OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH ANY 3D OPTIX SERVICE, INCLUDING, BUT NOT LIMITED TO COMMERCIAL LOSSES, LOSS OF REVENUES OR PROFITS, LOSS OF GOOD WILL, INCONVENIENCE, OR EXEMPLARY, SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES WHATSOEVER, OR CLAIMS OF THIRD PARTIES, REGARDLESS OF THE FORM OF ANY CLAIM, WHETHER IN CONTRACT OR TORT, WHETHER FROM BREACH OF THIS AGREEMENT, OR DEFECTIVE PRODUCTS, OR LOSS OF DATA OR FROM ANY OTHER USE, EVEN IF 3D OPTIX HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGE.

IN NO EVENT SHALL 3D OPTIX’ LIABILITY FOR LOSS OR DAMAGES EXCEED THE PURCHASE PRICE PAID FOR THE PARTICULAR PRODUCT.

  1. Export; Import and Sanctions Law(s).

Products available for purchase from 3D Optix are intended for non-commercial use, and purchase of any merchandise for resale purposes is prohibited. Further, by agreeing to these Terms of Sale, Buyer certifies that any Product will not be re-exported, sold, or transferred in violation of any applicable laws, including the U.S. Export Administration Regulations or applicable U.S. sanctions and embargoes administered by the U.S. Department of the Treasury. Any attempt to have commodities, technology and/or software exported from the United States that are not in accordance with the U.S. Export Administration Regulations and any other applicable law is strictly prohibited. ALTHOUGH WE ARE FACILITATING A PURCHASE AND DELIVERY TO YOU, YOU ARE THE PARTY IMPORTING MERCHANDISE INTO YOUR COUNTRY (“IMPORTER OF RECORD”) OR CONSIGNEE, AS APPLICABLE, AND YOU MUST COMPLY WITH ALL LAWS AND REGULATIONS OF THE COUNTRY INTO WHICH THE PURCHASED ITEMS ARE BEING DELIVERED. It is your responsibility to know the laws in the country into which you are receiving the Products. By purchasing Products hereunder, you are acknowledging that such delivery does not violate any laws or regulations in the country into which the purchased merchandise will be delivered.

  1. Remedies.

3D Optix shall have the right to terminate any order, or to delay the shipment thereof, by reason of (a) Buyer’s bankruptcy or insolvency, or the pendency of any proceedings against Buyer under any statute for the relief of debtors; (b) Buyer’s breach of these Terms of Sale; (c) 3D Optix’ learning that the ultimate destination of the Products is other than that set forth in the 3D Optix quote; or (d) failure of Buyer to meet any other reasonable requirements established by 3D Optix or to provide timely responses to requests from 3D Optix (including acts or omissions of Buyer which may delay production).

  1. General.

No waiver of any provision of these Terms of Sale shall be valid or binding on any party unless agreed to in writing by the party to be charged. The failure of either party to enforce at any time any of the provisions of these Terms of Sale, or the failure to require at any time performance by the other party of any of the provisions of these Terms of Sale, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of either party to enforce each and every such provision thereafter.

These Terms of Sale shall be construed under and according to the laws of the State of Israel without regard to its conflict of law provisions. The parties agree that the courts of Tel Aviv-Jaffa, Israel, shall have exclusive jurisdiction for any actions relating to these Terms of Sale.

Any provision hereof prohibited by, or unenforceable under applicable law shall be ineffective to the extent of such prohibition and shall be replaced by an enforceable provision to the same or the nearest possible equivalent effect. Notwithstanding the foregoing, the other provisions hereof shall continue in effect unless the ineffectiveness of any provision shall substantially affect the consideration received by either party hereunder.

All sales of Products by 3D Optix to the Buyer shall be subject to these Terms of Sale, which may not be changed, terminated or discharged except by another document in writing, signed by the Buyer and 3D Optix. 3D Optix hereby gives notice that it objects to any other or different terms which may be proposed by the Buyer, unless specifically agreed to in writing by 3D Optix, and if any such additional or different terms are specified by the Buyer, in its purchase order or otherwise, the contract between the parties shall be governed by the terms and conditions set forth herein.

 

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