These Optopax Standard Terms & Conditions (the “Terms”) apply to all Customer orders placed pursuant to Optopax quotations (“Quotation(s)”) and govern Customer’s purchases from Optopax of products, components, design, assembly, test, and other services.  Notwithstanding the foregoing, if Customer and Optopax have a negotiated agreement in place that has been mutually agreed and executed by the parties, the terms of the negotiated contract shall apply to the customer’s purchases made thereunder.

1.    Quotations.  Unless otherwise set forth in the Quotation, Quotations are valid for 15 days from the date of the Quotation.  In the event that Customer does not agree to terms of a Quotation, those terms may be changed only if Optopax agrees to issue a revised quotation.  Customer’s acceptance of the Optopax Quotation or submission of an order in response indicates Customer’s acceptance of the terms of the Quotation and these Terms.

2.    Fees and Payment Terms.  Customer will pay properly invoiced fees and reimburse any business expenses as set forth in the Quotation, without deduction or setoff. Unless otherwise set forth in the Quotation: (a) all fees owed to Optopax will be paid in U.S. Dollars, (b) invoiced payments will be due within 15 days after the invoice date, (c) fixed fees payable for design services and ordered components will be invoiced 50%  after receipt of order (“ARO”) and 50% at the completion of the design services or delivery of ordered components; (d) time and materials payments will be invoiced at the end of the month during which the services were provided, and (e) agreed orders (accepted orders placed based on a valid Quotation) are non-cancelable and all amounts paid are non-refundable. All bank charges and wire transfer fees are not included in invoices and are the responsibility of Customer.

3.    Taxes. All fees and charges payable by Customer are exclusive of applicable taxes and duties, such as VAT and applicable sales tax, all of which are the responsibility of Customer.  If Customer is legally entitled to an exemption from any sales, use, or similar transaction tax, Customer is responsible for providing Optopax with legally sufficient tax exemption certificates for each taxing jurisdiction.  Optopax will apply the tax exemption certificate to charges under Customer’s account occurring after the date Optopax receives the tax exemption certificate(s).  Neither party shall be required to pay any income taxes or similar charges of the other party.

4.    Past Due Amounts.  For all amounts not paid when due, Customer will pay to Optopax a late fee of $75 and interest shall start to accrue from the date the invoice was due at the rate of 2% per month, or the maximum rate under applicable law, whichever is lower.  Customer is responsible to reimburse Optopax for all reasonable costs and expenses incurred in seeking collection of overdue amounts, including, without limitation, attorneys’ fees.  In addition to all other remedies available under this Agreement, Optopax shall have the right to suspend delivery of services and deliverables during any period of non-payment of overdue amounts.

5.    Delivery Terms.  Unless otherwise specified in the Quotation, all products, components and services will be provided Ex-Works San Jose, California.

6.    Change Orders and Price Adjustments.  It is acknowledged and agreed that pricing is based on certain assumptions including without limitation those related to scope of work, and Optopax's costs (including without limitation manufacturing costs, component prices, delivery terms and schedule).  Optopax will provide a written request for a change order in the event that, due to circumstances outside of its reasonable control, pricing assumptions are invalidated or an expansion in the scope of work is required. The parties shall in good faith negotiate and agree on the change order based on the additional time and costs incurred by Optopax.

7.    Warranties. 

7.1    Services.  Subject to the provisions of Sections 7.3 through 7.6 below, Optopax warrants to Customer that for the warranty period of 30 days from performance, the design, assembly, testing and/or other services provided by Optopax pursuant to the applicable accepted Quotation have been performed in a thorough and professional manner, consistent with industry standards, by individuals with the required skill, training, experience, and qualifications to perform the services.

7.2    Components. Subject to the provisions of Sections 7.3 through 7.6 below, Optopax warrants to Customer that for the warranty period of 90 days from the date of shipment, the finished goods provided by Optopax, including any products or components it provides, will conform to the specifications set forth in the applicable Quotation and will be free from material defects in workmanship.  

7.3    Warranty Limitations.  The warranty set forth in Section 7.2 does not apply to any finished goods, products or components if the defect(s) or non-conformity(ies) are the result of: (a) abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, handling, abnormal physical stress or environmental conditions or use contrary to the use contemplated in the specifications; (b) compliance by Optopax with Customer’s specifications or written instructions; (c) design work not performed by Optopax; (d) failure or defects in test equipment supplied by Customer; and/or in the event of (e) reconstruction, disassembly, repair, modification, or alteration of the finished good, product or component by persons other than Optopax or its authorized representatives or any reverse engineering. Any of the foregoing shall invalidate the warranty.  The warranty provided in Section 7.2 does not apply to prototypes, pre-production units or test units.

7.4    Warranty Claims.  In the event of a warranty claim, Customer shall notify Optopax in writing within the applicable warranty period, describing with reasonable specificity the alleged defects or non-conformities and providing such supporting information as Optopax may reasonably request to evaluate the claim. Optopax may require the return of the applicable product(s) for inspection and verification of the claimed non-conformity. Customer shall be responsible for all costs associated with shipping the product(s) to Optopax’s designated facility for evaluation (freight prepaid). Upon confirmation by Optopax of a valid warranty claim, Optopax shall, as Customer’s sole and exclusive remedy and at Optopax’s expense: (a) reperform any non-conforming services; and/or (b) repair or replace the non-conforming finished good(s), component(s), or product(s) in accordance with Section 6. Optopax shall be responsible for the cost of return shipment of repaired or replacement product(s) to Customer using standard shipping methods. If Optopax determines that no warranty non-conformity exists (No Defect Found), Customer shall be responsible for all return shipping costs and, if applicable, reasonable evaluation or handling fees. THIS SECTION 6.4 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND OPTOPAX’S SOLE LIABILITY WITH RESPECT TO ANY WARRANTY CLAIMS ARISING UNDER SECTIONS 7.1 AND 7.2.

7.5    Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THESE TERMS, OPTOPAX DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND TITLE. OPTOPAX DOES NOT WARRANT THAT: THE SERVICES, FINISHED GOODS, COMPONENTS, PRODUCTS OR OTHER DELIVERABLES PROVIDED PURSUANT TO THESE TERMS AND THE APPLICABLE QUOTATION WILL MEET ANY CUSTOMER REQUIREMENTS NOT SET FORTH IN THESE TERMS OR ANY RELEVANT QUOTATION; ANY FINISHED GOODS, COMPONENTS, PRODUCTS OR DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE; OR, THE OPERATION OF ANY SERVICES, FINISHED GOODS, COMPONENTS, PRODUCTS OR OTHER DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL SUCH ERRORS WILL BE CORRECTED.  

7.6    Third Party Products.  Optopax is not responsible for the performance of any hardware, software or other materials manufactured or provided by Customer or any third party (collectively “Third Party Products”).  Product warranties for Third Party Products sourced through Optopax pursuant to the Quotation, if any, are provided by the manufacturers thereof and not by Optopax.  Optopax’s sole obligation is to reasonably cooperate with Customer (at no cost to Optopax), following written request by Customer as part of Customer’s efforts to seek satisfaction of any such warranty.

8.     Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL OPTOPAX BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY LOSS OF PROFITS, DATA OR REVENUES, OR OTHER INTANGIBLE LOSSES OF ANY KIND THAT MAY ARISE IN CONNECTION WITH THESE TERMS, ORDERS PLACED PURSUANT TO ACCEPTED QUOTATIONS, OR THE SERVICES, PRODUCTS, COMPONENTS, FINISHED GOODS, OR OTHER DELIVERABLES, REGARDLESS OF THE CAUSE OF ACTION OR CHARACTERIZATION OF THE DAMAGES, EVEN IF OPTOPAX HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL THE AGGREGATE LIABILITY OF OPTOPAX TO CUSTOMER ARISING OUT OF OR RELATING TO THESE TERMS AND ANY QUOTATIONS, THE SERVICES, OR ANY FINISHED GOODS, COMPONENTS, PRODUCTS OR OTHER DELIVERABLES, OR OTHERWISE EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO OPTOPAX PURSUANT TO THE APPLICABLE QUOTATION TO WHICH THE LIABILITY RELATES. 

9.    Indemnification. Customer will indemnify Optopax and its officers, employees, contractors and agents (collectively “Optopax Indemnitees”) from and against any claim by a third party: (a) arising from or relating to any Customer-offered product or service used in connection with the services, finished goods, components, products, or deliverables, and/or (b) for personal injury or damage to tangible property resulting from the negligence or willful misconduct of Customer, and in the case of both (a) and (b), will indemnify and hold harmless the Optopax Indemnitees from and against any damages, costs and expenses (including reasonable attorneys’ fees and costs) incurred by the Optopax Indemnitees as a result of such claim.

10.    Confidentiality. If the parties have a non-disclosure agreement (“NDA”) in effect governing any transactions that are subject to these Terms, the NDA shall be binding upon the parties hereto.  In the event that an NDA is not in place, the parties each agree that with respect to any non-public data, information and other materials (“Confidential Information”) provided by or made available by one party (the “Disclosing Party”), either directly or indirectly through third parties, to the other party (the “Receiving Party”) where the information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where the information should, by its nature or the circumstances surrounding disclosure, be reasonably considered to be confidential and/or proprietary, the Receiving Party agrees to: (a) use the Confidential Information of the Disclosing Party only to perform under the Quotation and these Terms; (b) treat all Confidential Information of the Disclosing Party in the same manner that it treats its own similar proprietary information, but in no case with less than reasonable care; and (c) disclose the Disclosing Party’s Confidential Information only to its affiliates, and its and their employees, contractors, and agents who have a need to know the Confidential Information for the purpose of these Terms and the applicable Quotation, provided such affiliates and its and their respective employees, contractors, and agents agree to be bound by confidentiality obligations consistent with the terms of this Section 9.  The Receiving Party will remain liable for any non-compliance of such affiliates and its or their employees, contractors and agents with these terms.  Notwithstanding the foregoing, “Confidential Information” does not include information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or its approved release by written authorization of the Disclosing Party; or (iv) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information.

11.    Term and Termination. These Terms shall remain in full force and effect until all obligations of the parties under the applicable accepted Quotation have been satisfied.  Either party may terminate the applicable Quotation immediately upon written notice if the other party breaches a material term of the Quotation or these Terms and fails to cure such breach within thirty (30) days following receipt of a reasonably detailed written notice of such breach from the non-breaching party.

12.    Export. Customer understands that the services, finished goods, components, products and other deliverables (collectively referred to as “deliverables” in this Section 10) may be subject to applicable export and import control laws and regulations of the United States and other applicable countries (the “Applicable Trade Laws”).  Customer may not export or re-export the deliverables or any underlying information or technology except in full compliance with all Applicable Trade Laws. None of the deliverables or underlying technology may be exported or re-exported: (i) into (or to a national or resident of) any country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities.  Customer hereby agrees to the foregoing and represents and warrants that Customer is not located in, under control of, or a national or resident of any such country or on any such list and that none of the deliverables shall be used for any purposes prohibited by Applicable Trade Laws.

13.    Force Majeure. Except as expressly provided in these Terms or the applicable Quotation, neither party will be liable for any delay in performance due to act of God, nature or a public enemy, earthquake, flood, fire, government order, riot, civil disobedience, labor strife, or any other cause beyond the reasonable control and without its fault or negligence, including by way of example and not limitation, interruption of electricity, communication or transportation (a “Force Majeure Condition”).  The party whose performance is delayed by a Force Majeure Condition will use its reasonable efforts to notify the other party of the delay and to minimize its effect.

14.    Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.  Any legal action or proceeding to enforce these Terms and the applicable Quotation must be brought exclusively in the federal or state courts located in the Northern District of California.  The parties hereby consent to personal jurisdiction in the State of California.

15.    Entire Agreement. These Terms and the applicable Quotation constitute the entire agreement of the Parties with respect to the matters set forth herein.  Any additional, different, or conflicting terms and conditions in any purchase order, acknowledgement, or other document issued by Customer are expressly rejected and shall be of no force or effect.  Any amendments to these Terms or the terms of the applicable Quotation must be made via a written change order issued by Optopax and agreed in writing by Customer.  In the event of a conflict between these Terms and the applicable Quotation, the terms of the Quotation will prevail but only to the extent the applicable term set forth in these Terms is expressly superseded in the Quotation.  

16.    Binding Agreement.  Customer’s acceptance of a Quotation, issuance of a purchase order in response, or acceptance of any goods or services provided by Optopax constitutes Customer’s agreement to be bound by these Terms.