All sales made by Edmund Optics, Inc. (“Seller”) to the Buyer (“Buyer”) are expressly conditioned on Buyer’s acceptance of the following terms and conditions. Seller will not be bound by any terms of Buyer’s Purchase Order or other acknowledgement form that are inconsistent with the terms herein. These terms and conditions may only be amended or waived in writing signed by an authorized representative of Seller. Neither Seller’s commencement or performance nor delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions.
All orders for Products shall be made by written purchase order sent to Seller, or by fax, email, or via the web. All purchase orders shall reference these terms and conditions. No purchase order shall be binding upon Seller until accepted in writing by Seller, and Seller shall have no liability to Buyer with respect to purchase orders that are not accepted. Buyer shall submit purchase orders to Seller in accordance with Seller’s lead times then in effect. Once Seller accepts a purchase order, a Sales Order will be issued.
Requests for Quotes can be sent to Seller by fax, email, or via the web. Seller will issue quotes in writing to Buyer based on current pricing and availability. Quotes are not binding upon the Seller.
All quoted pricing is valid for 60 days from issuance of quote. If the shipment date of the products is not within 90 days of the date of the Sales Order, all prices set forth herein are subject to adjustment by Seller in accordance with its pricing policies in effect at the time of shipment. The price on the website or in the current catalog supersedes any previous website or catalog pricing. To the extent the price on the website differs from catalog pricing, the price on the website shall prevail. All prices are subject to change without notice.
Quoted pricing does not include any federal, state or local taxes, assessments or duties. Buyer shall promptly pay the amount of any present or future sales, use, or other similar tax (and all applicable interest or penalties) applicable to the sale of the Products hereunder, whether such amount is specified in the Sales Order, subsequently determined or recalculated. In lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities.
Unless otherwise specified by Seller, payment terms are Net 30 days, 1% discount if paid within 10 days of the date of the invoice. Buyer will pay Seller’s reasonable attorneys’ fees incurred in collecting past due amounts owed. Any dispute arising out of or related to the Sales Order shall be brought exclusively in the courts of the State of New Jersey, and New Jersey law should govern the sales transaction. Any balances which are unpaid after thirty (30) days are subject to a one and a half percent (1.5%) interest charge per month, or the maximum amount permissible by law, whichever is greater.
After acceptance by the Seller, the Buyer’s order is not subject to cancellation, change, reduction in amounts, or suspension or delay of shipment, except with the Seller’s written consent. Cancelled orders consented to by the Seller are subject to cancellation charges, based upon all expenses incurred by the Seller up to the time of cancellation. This includes excess inventory of stock items that have been specifically allocated to the Buyer and exceed normal Seller inventory levels for a period. Seller may cancel the order in the following cases: the Seller’s costs have exceeded selling price to Buyer; the Seller is unable to provide product due to factors beyond the Seller’s control.
If shipments are delayed by Buyer, payment shall become due on the date when Seller is prepared to make shipment unless otherwise agreed to in writing by Seller at time of incident. Products held for the Buyer shall be at the risk and expense of the Buyer.
Buyer shall indemnify, defend, and hold Seller, and its subsidiaries and affiliates, and their respective officers, directors and employees, harmless from any liabilities and expenses, including reasonable attorneys’ fees, to the extent resulting from a claim alleging that any Product sold by Seller infringes the copyright, trademark, patent, trade secret or other intellectual property right of a third party due to specifications or requirements provided by Buyer.
Buyer at any time, by a written order, may request changes within the general scope of this contract; however, no changes are effective without written consent of Seller. If any such changes cause an increase or decrease in the cost of, or the time required for, any part of the work hereunder, an equitable adjustment shall be made by Seller by written Sales Order amendment to the price or delivery schedule, or both.
Seller agrees to use its best efforts to meet scheduled delivery requirements. Seller shall not be liable for any delay in performance or in the shipment or delivery of goods or for any damages or excess costs suffered by Buyer by reason of such delay, if such delay is beyond the Seller’s and/or the Seller’s subcontractors or suppliers reasonable control. Such causes may include, but are not limited to, the direct or indirect result of, by, or in any manner arising from, fires, floods, epidemics, quarantine restrictions, accidents, civil unrest, war, acts of God, acts of the public enemy, acts of the Government in either its sovereign or contractual capacity, Governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials, supplies, transportation and/or weather delays, or any other cause or causes similar in nature to any of those specified herein. Seller will, within a commercially reasonable time, notify Buyer of any schedule delay.
All Products are shipped F.O.B. shipping point or Ex-Works from origin, unless otherwise specified. Buyer is responsible for any loss or damage to shipments after Seller has delivered the Products to any common carrier. Seller shall use reasonable efforts to deliver Products at the times specified in the Sales Order, provided, however, that all delivery dates are estimates and deliveries may be made in installments. All Products delivered will be packaged in accordance with Seller’s standard practice or mutually agreed upon method and include itemized packing slips. Buyer shall accept or reject Products, including “Custom” products, as promptly as feasible, but in any event within thirty (30) days after receipt, for failure to substantially conform to Seller’s published specifications. If Buyer fails to notify Seller in writing of its rejection and reasons thereof within such period, Buyer shall be conclusively deemed to have irrevocably accepted the Products.
Orders received before 6:30 P.M. EST Monday-Friday and 12:45 P.M. EST Saturday can be shipped the same day via UPS from within the United States.
LIMITED WARRANTY - IMPORTANT (AS STATED IN SELLER’S CATALOG AND WEBSITE):
OTHER THAN AS EXPRESSLY SET FORTH HEREIN OR AS CONTAINED IN ANY EXPRESS WRITTEN WARRANTIES PROVIDED WITH PRODUCTS AT DELIVERY AND TO THE EXTENT PERMITTED BY LAW, THE SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS OF THE PRODUCTS FOR ANY PARTICULAR PURPOSE. SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE USE OR PERFORMANCE OF THE PRODUCTS. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ITS CUSTOMERS FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES RESULTING FROM LOSS OF USE, INTERRUPTION OF BUSINESS, OR LOST PROFITS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY TO BUYER AND ITS CUSTOMERS EXCEED THE AMOUNT PAID FOR PRODUCTS PURCHASED UNDER THIS AGREEMENT IN THE PRIOR 6 MONTHS.
IN THE CASE OF CONSUMER BUYERS, THE DURATION OF ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS LIMITED TO THE DURATION OF THE EXPRESS WARRANTIES PROVIDED IN THE APPLICABLE LIMITED WARRANTY.
Notice to Consumer Buyers: Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state.
Payment Options The following payment options are at the option and in the discretion of Seller.
a) Seller shall control the disclosure of and access to technical data, information and other items to be delivered under this Sales Order and Buyer acknowledges that certain U.S. export control laws and regulations may apply to the performance of this Sales Order, including but not limited to the International Traffic in Arms Regulations (ITAR) (22 CFR 120, et seq.), the Export Administration Regulations (EAR) (15 CFR 730-774), and regulations of the Bureau of Alcohol, Tobacco, and Firearms (BATF) (27 CFR 447, et seq.) (collectively, the “Export Control Laws”). Buyer shall at all times comply with all applicable Export Control Laws.
b) Information furnished to Buyer under this Sales Order may contain technical data, as defined in the ITAR Part 120.10 (22 CFR 120.10). Buyer shall not export, disclose, or transfer any such technical data, relating to export controlled items appearing on the U.S. Munitions List (USML) in the ITAR Part 121 (22 CFR 121), to any foreign person (whether in the United States or abroad), as defined in the ITAR Part 120.16 (22 CFR 120.16), without first complying with all relevant requirements of ITAR Parts 120-130 (22 CFR 120-130). This includes, but is not limited to the requirement for obtaining any written export authorization from the U.S. Department of State, Office of Defense Trade Controls (ODTC), or otherwise making and documenting the determination that an ITAR licensing exception or exemption applies, as the case may be. A downloadable copy of the ITAR is accessible at the ODTC website at www.pmddtc.state.gov.
c) Buyer shall not export, temporarily import, re-export or retransfer any defense articles or export defense services to a foreign person in the U.S. or abroad without complying with all relevant requirements of ITAR Parts 120-130 (22 CFR 120-130), including the requirement to obtain any written export, temporary import or re-export or retransfer authorization from ODTC, or otherwise make and document the determination that an ITAR licensing exception or exemption applies, as the case may be.
d) Buyer is further advised that if it engages in the United States in the business of either manufacturing or exporting defense articles as defined in ITAR 120.6 (22 CFR 120.6) or defense services as defined in the ITAR Part 120.9 (22 CFR 120.9), then Buyer is required by the ITAR Part 122 (22 CFR 122) to register with the ODTC using forms accessible at the ODTC website at www.pmddtc.state.gov. Manufacturers of defense articles who do not engage in exporting of same must nevertheless register with ODTC. Registration does not by itself confer export rights or privileges, but is generally a precondition to the issuance of any license or other approval by ODTC. Upon request by Seller, Buyer shall provide to Seller adequate proof of such registration or demonstrate that the registration is unnecessary or that an exception or exemption to such registration requirement applies to the Buyer.
e) In addition to the foregoing ITAR requirements, information furnished to Buyer under this Sales Order may contain technical data, as defined in the EAR Part 772 (15 CFR 772) relating to export controlled items appearing on the Commerce Control List (CCL) in the EAR Part 774 (15 CFR 774). Buyer shall not export out of the U.S. or to a foreign national in the U.S., as defined in the EAR Part 772 (15 CFR 772), any such technical data without complying with all relevant requirements of the EAR Parts 730-774 (15 CFR 730-774), including the requirement to obtain any written export authorization from the U.S. Commerce Department, Bureau of Industry and Security (BIS), or to otherwise make and document the determination that a licensing exception or exemption applies, as the case may be. A downloadable copy of the EAR is accessible at the BIS website at https://www.bis.doc.gov/.
f) Buyer shall not export out of the U.S., re-export from one foreign country to another foreign country or to a foreign national outside the U.S. any commodities, technology or software (as defined in the EAR Part 772 (15 CFR 772)) without complying with all relevant requirements of the EAR Parts 730-774 (15 CFR 730-774), including the requirement to obtain any written export authorization from BIS, or to otherwise make and document the determination that a licensing exception applies, as the case may be.
g) Buyer shall not permanently import into the U.S. articles appearing on the BATF U.S. Munitions Import List at 27 CFR 447, Subpart C, without an approved import permit issued by BATF pursuant to 27 CFR Part 447, Subpart E, unless an exception or exemption applies. Additionally, if Buyer is engaged in the business, in the U.S., of importing articles appearing on the U.S. Munitions Import List, Buyer must register with BATF pursuant to 27 CFR Part 447, Subpart D. Downloadable copies of the BATF regulations and forms are accessible at the BATF website at www.atf.gov.
h) If performance under this Sales Order requires the Buyer to export out of the U.S. machineguns, destructive devices, explosives, and certain other firearms, as defined in 27 CFR Part 479, Subpart B, Buyer shall not export such items out of the U.S. without an approved export permit issued by BATF pursuant to 27 CFR Part 478, Subpart K and 27 CFR Part 479, Subpart H. Buyer shall also obtain all necessary export licenses issued by the ODTC regarding such exports, if applicable.
i) Notwithstanding anything to the contrary in the foregoing paragraphs, Buyer represents that it has obtained all registrations and licenses necessary to perform this sales transaction. Buyer shall not transfer any export controlled item, technical data, technology, or service, unless the Buyer is registered with appropriate U.S. authorities and obtains all required export licenses, license exceptions, or license exemptions, as applicable.
j) Buyer hereby represents that neither Buyer nor any parent, subsidiary or affiliate of Buyer is included on any of the restricted party lists maintained by the U.S. Government, including, but not limited to the Specially Designated Nationals List administered by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), Denied Parties List, Unverified List or Entity List maintained by the U.S. Commerce Department’s Bureau of Industry and Security (BIS), or the List of Statutorily Debarred Parties maintained by the U.S. State Department’s Directorate of Defense Trade Controls (collectively, “Restricted Party Lists”). Buyer shall immediately notify the Seller if Buyer, or any parent, subsidiary or affiliate of Buyer becomes listed on any Restricted Party List or if Buyer’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. or non-U.S. government entity or agency.
k) Buyer hereby indemnifies Seller and shall be responsible for all losses, costs, claims, causes of action, damages, liabilities and expense, including attorney’s fees, all expense of litigation and/or settlement, and court costs, arising from any act or omission of Buyer, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under the foregoing paragraphs.