General Terms and Conditions of Sale (GTC)
1- GENERAL:
Flexible Optical BV (tradename OKO Techologies) is here called OKO for short. The terms and conditions may not be modified or cancelled without OKO’s written agreement.
Accordingly goods furnished and services rendered by OKO are sold only on the terms and conditions stated herein, notwithstanding
contrary or additional terms and conditions in any purchase order, schedule, acknowledgement, or any other form or document issued by either party effecting the purchase and/or sale. All such additional or contrary terms and conditions are not accepted by OKO, unless expressly accepted in writing with specific reference to any such contrary provision after receipt of such form or document.
2. PRICES:
a. The prices and their applicable period will be as specified on the OKO’s quote. If no period is specified, quoted prices will be applicable for thirty (30) days.
b. The prices are given on DAP basis, in accordance with “Incoterms 2010″, ICC version. Prices are exclusive of taxes, impositions and other charges including use, excise, value added and similar taxes or charges imposed by any government authority, international shipping charges, forwarding agent’s and broker’s fees, bank fees, consular fees, document fees, import duties, and delivery cost. The prices include the cost of packing.
c. OKO reserves the right to increase the price of the goods or services sold in proportion of any increase of costs between the date of
acceptance of order and the date of delivery (including but not by way of limitation those relating to: exchange rates, labour, materials, carriage, taxes, …) or when the increase is due to any act or default of the buyer. OKO shall not be responsible for any increase in the price of goods or services sold between the date of acceptance of an order and delivery: (i) due to changes in exchange rates between the Euro and the currency of the contract adverse to OKO; or (ii) due to increases in cost beyond the control of OKO, including without limitation hereby increased taxes, duties or transportation costs.
3. ACCEPTANCE AND CANCELLATION OF ORDERS:
All orders are subject to acceptance by OKO in writing by a duly authorized employee of OKO, accepted at its principal office in the Netherlands. Any written acknowledgement of receipt of an order shall not, in and of itself, constitute such acceptance. Orders accepted by OKO may be cancelled by the customer upon written consent of OKO and provided such order is not “NC/NR” or “Non-Cancelable/Non-Returnable” (“Non-Standard Products”) or governed by a Purchase Agreement Letter. Non-standard products are defined as products which are special orders, custom orders, orders for non-standard products / products not customarily in stock, or orders for value-added products. Non standard products are non-cancelable and non-refundable. In the event of cancellation or other withdrawal of an order for any reason and without limiting any other remedy which OKO may have as a result of such cancellation or other withdrawal, reasonable cancellation or restocking charges, which shall include all expenses than incurred and commitments made by OKO, shall be paid by the customer to OKO. The customer requests to reschedule are subject to acceptance by OKO in its sole discretion. Orders may not be cancelled or rescheduled after the goods have been delivered by OKO to the shipment carrier.
4. PAYMENT:
- Unless otherwise agreed, prices are understood to be free carrier (FCA, Incoterms 2020). Sales tax at the respective statutory rate must be added to the prices.
2. Invoices for deliveries must be paid without deduction to the account indicated by OKO within 30 days from the invoice date.
3. Invoices for services must be paid immediately and without deduction to the account indicated.
4. The customer has the right to withhold payments or to set off against counterclaims only to the extent that such counterclaims are undisputed or have been upheld by the law.
5. If the agreed delivery date is more than four months after the date on which the contract is signed and demonstrable price rises in the intervening period have increased the actual costs of OKO by more than 5%, OKO is entitled to request a correspondingly adjusted price, not exceeding 15% higher than the agreed price. If the actual costs de crease, the customer is entitled to request a corresponding reduction in the price.
6. Bills of exchange will only be accepted on the basis of a special agreement. Checks and bills of exchange will only be accepted in lieu of payment. Discount charges and bank fees will be borne by the drawer. Payments will be considered to have been made when the account of OKO has been credited without reserve. If the buyer has issued several bills of exchange and if a bill of exchange is not paid on the due date, all other bills of exchange immediately become due for payment.
5. WARRANTY AND EXPORT DISCLAIMERS:
Warranty
The equipment is covered by a one-year factory-defect warranty.
items damaged during shipping will be replaced by a similar device within two months. A photo of the damaged device followed
by a damage report should be sent to Flexible Optical B.V. (OKO® Technologies) within 5 working days after the damaged device is
received.
EXCEPT WHEN OTHERWISE STATED IN WRITING FLEXIBLE OPTICAL B.V. (OKO® TECHNOLOGIES) AND/OR OTHER PARTIES PROVIDE THE EQUIPMENT AND SERVICES ”AS IS” WITHOUT WARRANTY
OF ANY MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE EQUIPMENT IS WITH YOU.
AND/OR SUPPLIED BY FLEXIBLE OPTICAL BV.
Export
According to the European export law, a license to export outside
the EU should be obtained for any product that matches the
definition (article 6A004.a, 6A004.f):
-
'Deformable mirrors' having an active optical aperture greater than 10 mm and having any of the following, and specially designed components therefor,
a. Having all the following:
1. A mechanical resonant frequency of 750 Hz or more; and
2. More than 200 actuators; or
b. A Laser Induced Damage Threshold (LIDT) being any of the following:'
1. Greater than 1 kW/ cm2 using a "CW laser"; or
2. Greater than 2 J/ cm2 using 20 ns "laser"pulses at 20 Hz repetition rate; -
Dynamic wavefront measuring equipment having all of the following:
- 'Frame rates' equal to or more than 1 kHz; and
- A wavefront accuracy equal to or less (better) than λ/20 at the designed wavelength.
6. RETURN OF GOODS:
a. Except under the warranty contained in paragraph 5, no return is accepted without OKO’s written agreement.
b. If OKO agrees to accept returns other than under the warranty contained in paragraph 5, they must be returned at the Buyer’s expense in original condition.
7. UNEXPECTED EVENTS – FORCE MAJEURE:
OKO will not be liable for delays in delivery or for failure to perform its obligations due to causes beyond its reasonable control, including, but not limited to, product allocations, material shortages, labor disputes, transportation delays, unforeseen circumstances, acts or omission of other parties, acts or omission of civil or military authorities, Government priorities, fire, strikes, floods, severe weather conditions, computer interruptions, terrorism, epidemics, quarantine restrictions, riots, or war. OKO’s time for delivery or performance will be extended by the period of such delay, or OKO may, at its option, cancel any order or remaining part thereof without liability by giving notice to customer.
8. DELIVERY:
a. Any delivery period quoted is an estimate only and commences from OKO’s acknowledgement of the Buyer’s order. Provided that
OKO takes all reasonable steps to deliver the goods at the time stated, OKO shall be under no liability for failure to do so. OKO
excludes liability for consequential loss or damage suffered by the Buyer as a result of late delivery of goods for any causes whatever.
b. OKO reserves the right to deliver in more than one consignment and to invoice each consignment separately.
c. Delay in delivery or other default in respect of any installment of any one or more types of goods shall not relieve the Buyer of its
obligation to accept and pay for the remaining deliveries.
d. Goods will be packed to OKO’s normal specification in non-returnable packing unless the Buyer specifies otherwise and the Buyer will be charged accordingly.
e. No claim for loss or damage in transit will be accepted by OKO unless notice in writing is given to the carrier concerned (if any) and OKO, within seven days of delivery in the case of damage, or within ten days of the date of OKO’s invoice, in the case of loss. Only claims pertaining to improper packing or packaging will be reviewed.
f. Delivery and carriage terms are as stated in the quotation or as subsequently amended by OKO acknowledgement of the Buyer order.
9. TRANSFER OF TITLE AND RISK:
a. In the event of non-payment by the Buyer for documents complying with the conditions of this sale, OKO may give him formal notice to effect payment within 30 (thirty) days; title to each material and equipment supplied under any contract hereunder shall not pass to Buyer until payment in full for the material and equipment has been made; if payment is not made within that period OKO may freely dispose of goods and declaring the Buyer to be in default, may ask for the terms of the close-out of this contract to be fixed by means of law (with any price difference, penalty, and interest to be borne by Buyer).
b. Risk on the goods shall be in accordance with the delivery and carriage terms stated in OKO acknowledgement of the buyer’s order. In the event that such terms shall not determine the moment at which the risk shall pass, it shall pass when the goods leave the OKO’s premises.
10. DESCRIPTION AND DATA:
Goods will be supplied substantially as described but where OKO is the manufacturer, the right is reserved to make design changes which, however, will not lower the performance of the goods, affect their mechanical interchangeability, or increase their price. When OKO is not the manufacturer, goods will be those supplied to the manufacturer’s current standard. Specification and finish provided that any change does not lower the performance of the goods, affect their mechanical interchangeability, or increase their price.
11. HEALTH AND SAFETY WORK:
a. The Buyer undertakes that it will comply and will procure that its employees, customers, and every other persons working with, on, or near, or using the goods comply in full with the instructions and recommendations made in any Manual or handbook provided by OKO or the manufacturer of the goods, and that they will comply with all other instructions given in connection with the use or operation of the goods.
b. GOODS ARE INTENDED FOR COMMERCIAL USE ONLY. OKO DOES NOT CONDUCT ANY SAFETY TESTING OF ANY PRODUCTS THAT IT SELLS. SUCH PRODUCTS ARE NOT DESIGNED, INTENDED, OR AUTHORIZED FOR USE IN LIFE SUPPORT, LIFE SUSTAINING, HUMAN IMPLANTABLE, NUCLEAR FACILITIES, FLIGHT CONTROL SYSTEMS, OR OTHER APPLICATIONS IN WHICH THE FAILURE OF SUCH PRODUCTS COULD RESULT IN PERSONAL INJURY, LOSS OF LIFE, OR CATASTROPHIC PROPERTY DAMAGE. IF THE BUYER USES OR SELLS THE GOODS FOR USE IN ANY SUCH APPLICATIONS, BUYER ACKNOWLEDGES THAT SUCH USE OR SALE IS AT BUYER’S SOLE RISK; BUYER AGREES THAT OKO AND THE MANUFACTURER OF THE GOODS ARE NOT LIABLE, IN WHOLE OR IN PART, FOR ANY CLAIM OR DAMAGE ARISING FROM SUCH USE; AND BUYER AGREES TO INDEMNIFY, DEFEND, AND HOLD OKO AND THE MANUFACTURER OF THE GOODS HARMLESS FROM AND AGAINSTANY AND ALL CLAIMS, DAMAGES, LOSSES, COSTS, EXPENSES, AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH SUCH USE OR SALE.
c. Recycling and end of life for electric and electronic equipment waste (EEEW)
The customer has the option to return a B2C/B2B electronic equipment placed on the market by OKO to OKO at the end of its lifetime. The customer is obligated to actively contact OKO via one of the contact options in order to arrange for a return. OKO will then dispose of them properly. The costs incurred for the return and disposal shall be borne by the customer of the old electronic equipment.
12. STORAGE:
When delivery is delayed for reasons attributable to the Buyer, or its agent, storage and other additional costs will be charged to the Buyer and goods will be at the Buyer’s risk from the date that OKO notifies the Buyer that the goods are available for delivery. OKO reserve the right to invoice the goods at the original delivery date which shall be the warranty starting date.
13. INTELLECTUAL PROPERTY:
a. The sale of goodsand the publication of any information or technical data relating thereto does not imply freedom from patent, registered or unregistered design right, copyright, or any other intellectual property right whatsoever, in respect of any particular application of the goods.
b. The Buyer warrants that the designs and specifications supplied by it to OKO will not involve the infringement of any patent, registered or unregistered design right, copyright, or any other intellectual property right whatsoever, in the manufacture and sale of the goods by OKO.
c. The Buyer undertakes to indemnify and keep indemnified OKO against all royalties, claims, actions, demands, proceedings, losses and costs in connection with any Infringement or alleged infringement of any patent, or unregistered design right, copyright, or any other intellectual property right whatsoever, in the manufacture, sale or application of the goods arising out or in connection with the matters describe in paragraph 13a and/or 13b above.
14. TOOLS AND OTHER MANUFACTURING EQUIPMENT:
Tools and other manufacturing equipment made for the manufacture of goods to be supplied under the contract remain OKO’s property notwithstanding that the Buyer may have been debited with any sum in respect of their cost. Any intellectual property right whether or not registered in the tools and/or other manufacturing equipment and/or any drawings, sketches, plans, specifications or tables of data of the said tools or other manufacturing equipment, remains the property of OKO.
15. ORIGIN OF GOODS:
OKO makes no representation and gives no warranty in respect of the sources or origin of manufacture or production of the goods or any part thereof.
16. DOCUMENTS:
OKO will supply one invoice and one packing note with copies as required for each consignment of goods notwithstanding that the
consignment may comprise more than one package.
17. TERMINATION:
If the Buyer commits any breach of the terms and conditions of the contract, or suffers distress or execution, or becomes insolvent, or
commits an act of bankruptcy, or enters into any arrangement or composition with its creditors or goes, or is put into liquidation (other than solely for amalgamation or reconstruction while solvent), or if a receiver is appointed over any part of the Buyer’s business, OKO may, without any prejudice to any rights which may have accrued or which may accrue to it, terminate the contract summarily by notice in writing, stop any goods in transit, and repossess any goods for which the Buyer has not paid.
18. LAW AND DISPUTE RESOLUTION:
The contract and all disputes arising from the subject matter of the contract or these terms and conditions shall be governed and decided by Dutch law. In the event of any dispute between the parties, both parties agree to notify one another in writing of the issues(s) in dispute,
and within ten (10) days thereafter undertake good faith efforts to resolve the dispute. In the event of failure to resolve within fifteen (15) days of written notice being delivered to a party, either OKO or the Buyer may initiate a request for fast-track arbitration before a single arbitrator with requisite technical knowledge, dispute resolution experience, and English language fluency, pursuant to the fast track rules and under the auspices of the International Chamber of Commerce, sitting in the Hague, Netherlands. Both parties waive all rights to bring a cause of action or otherwise pursue a claim in a court of law, either in France or the United States, and agree that the decision of the sole arbitrator shall be final and binding upon the parties, with the sole exception, as follows: in the event that OKO has delivered goods to the Buyer and the Buyer has failed to pay for said Goods by the time said payment is due, OKO, at its sole discretion, shall have the right to bring an action in an appropriate state or federal court, in the State where the Buyer either is domiciled or has a principal place of business, solely to collect monies owing and due.
19. SEVERANCE:
These conditions shall apply so far they shall be held to be lawful or enforceable. If any condition or part of a condition shall be held to be unlawful or unenforceable, these conditions shall be read as if such condition or part were omitted.
20. CONSUMER SALES:
Notwithstanding the provisions of paragraph 5 hereof, nothing in these conditions shall limit the statutory rights of a Buyer dealing as a consumer as defined by the Consumer Transactions (restrictions on statements) Order 1976 (as amended).
21. EXPORT BY THE BUYER:
The goods purchased may not subsequently be exported except under the authority of an export license obtain by the Buyer.
22. EXPORT AND IMPORT LICENSES:
The Buyer shall obtain all import licenses and other necessary authorizations required for the import of the goods into the country of
destination and shall pay all customs and import duties levied on the goods outside of the Netherlands. Failure to obtain any license or authorization shall not relieve the Buyer of its responsibility of paying for the goods. The contract is conditional on OKO obtaining any necessary export licenses for the goods, and if OKO is unable to obtain such licenses, it may cancel the contract.
23. CANCELLATION:
In the event the obligations of one of the Parties don’t comply with articles referred to hereunder, the contract shall be, if required by the creditor of the said obligations, cancelled by giving notice of such termination to the debtor of the obligations within 30 (thirty) days. Such notice shall serve to discharge the Parties hereto from their mutual obligations and responsibilities under this agreement with respect to such products. Cancellation of the contract shall be effective 30 (thirty) days within the creditor’s inefficient notice.
24. LANGUAGE — NOTICES
It is hereby agreed that the parties specifically require that this agreement and any notices, consents, authorizations, communications, and approvals be drawn up in the English language. Any and all notices from one party to the other shall be in.