SPARK LASERS

General Terms Valid

as of 04 January 2017 – Rev A

1. Scope and Applicability

SPARK LASERS SAS, French Reg. No. 812 901 662 RCS Bordeaux (“SPARK LASERS”) is engaged in research, development, manufacture and sales of optical and laser equipments. Unless otherwise expressly agreed in writing, these General Terms (“Terms”) shall apply between SPARK LASERS and its customers (“Customer(s)”) with respect to Products sold and Services performed.

Spark Lasers warrants to the original purchaser that the Spark Lasers products conform to applicable specifications and is free from defects in materials and workmanship. These warranties start on the shipment date from Spark Lasers and continue until the end of the warranty period listed in Spark Lasers’ sales order, or in Spark Lasers’ specifications or two years, whichever occurs later.

 

The obligations of Spark Lasers are limited to repair or replace (at Spark Lasers’ option) any product that does not meet the Spark Lasers warranty during the warranty period. Spark Lasers warrants repaired or replaced products under warranty only for the remaining un- expired period of time in the original warranty. Spark Lasers reserves the right to issue a credit note for any defective products that have proved defective through normal usage, purchaser debit memos are not allowed. This warranty governs over any conflicting terms in purchaserʼs purchase order or other Spark Lasers documents.

2. Delivery of Products

Unless otherwise agreed, products are delivered Ex-Works from SPARK LASERS’ premises (INCOTERMS 2010) and the related consequences shall apply even when SPARK LASERS accepts to arrange transportation on Customer’s behalf. As soon as it becomes aware of a possible delayed delivery SPARK LASERS shall inform Customer accordingly so that both parties can cooperate with a view to mitigating any consequential loss. In any event SPARK LASERS’ liability as to any delayed delivery shall be null as SPARK LASERS do not master 3rd party freight forwarders’ acts. However, on a case per case basis, SPARK LASERS shall study Customers claim and find a fair resolution of disturb linked to any delay caused by shipment. Any claim for damages not forwarded within 15 days after the agreed delivery date shall lapse. Any further claim due to delay shall be excluded.

3. Performance of R&D Services

SPARK LASERS shall ensure that ordered Services are performed conscientiously and with the optimum utilization of the expertise at SPARK LASERS’ disposal and its liability, particularly as to delivery time schedule and with regard to reaching the technical specifications, shall be interpreted and limited accordingly. If a budget has been agreed upon, SPARK LASERS shall obtain Customer’s consent before incurring costs that can reasonably be expected to exceed the total budget.

If it becomes apparent that an agreed milestone shall not be complied with by some significant extent, SPARK LASERS shall inform Customer accordingly so that both parties can cooperate with a view to mitigating any consequential loss.

4. Intellectual Property Rights

These Terms shall not constitute or imply any transfer of, or grant of license to, intellectual property rights (“IPR”) held by either party or generated outside their collaboration.

SPARK LASERS shall be unrestricted in its right to use IPR generated by itself during the course of manufacturing Products or performance of Services, unless SPARK LASERS has accepted specific limitations in writing.

Any jointly developed IPR shall be co-owned by the parties which undertake to negotiate in good faith between them all necessary co-ownership agreement so as to grant each of them with fair and balanced obligations, rights and benefits with regard to the protection and the use of such IPR.

5. Confidentiality

Any information disclosed to Customer by SPARK LASERS shall be deemed to be confidential and shall be treated and maintained as such by Customer during a minimum period of ten years. Unless otherwise agreed, SPARK LASERS shall be entitled to state the Customer’s name in SPARK LASERS’ list of references.

6. Prices and Payment

All prices are exclusive of any applicable sales or value added taxes as well as transportation and insurance charges. Such taxes and charges will be stated separately on invoices. Services shall be paid for according to (i) an agreed payment schedule with respect to lump sums or, in the absence thereof, (ii) monthly invoices based on SPARK LASERS’ hourly rates (calculated in half-hour intervals) and rates for the use of special equipment plus expenses incurred for materials, travel, deliveries from sub-suppliers etc. Prices and rates may be adjusted in accordance with standard price trends once a year as of 1st January. All payments shall be effected in €UROS (EUR), unless another currency has been quoted, no later than 30 days from the date of the invoice, unless writtenly informed on the quote and pro-forma invoice. In the event of delayed payment, SPARK LASERS shall upon giving one week’s notice be entitled to terminate all, or some, pending deliveries or Services. Simultaneously, all outstanding amounts shall fall due regardless of previously granted terms of credit. On delayed payments an interest of 1% per commenced month is accrued, but applicable only after a full one (1) full month initial payment delay free of interest. In case of order cancellation should this cancellation occur no later than 10 days after booking of Purchase Order from the Customer, the Customer will be charged with 60% of the Products total price in order to cover the basic expenses or even damages faced by SPARK LASERS. Until payment has been received in full by SPARK LASERS, title to/ownership of the Products shall remain with SPARK LASERS, and in the event of non-payment, SPARK LASERS, in addition to all other rights and remedies available to it, be entitled to recover possession of the Products.

7. Warranty

SPARK LASERS warrants that its Products shall be manufactured in accordance with good workmanship. This Warranty is expressly made in lieu of any and all warranties, expressed or implied, including, without limitation, warranties of merchantability and fitness for any particular purpose.

SPARK LASERS does not warrant any functionality of designs, etc. furnished by the Customer. The Customer shall examine the Products upon receipt and any alleged breach of warranty shall be notified to SPARK LASERS immediately. The sole liability of SPARK LASERS for breach of warranty shall be the prompt repair or replacement of non-conforming products. The standard warranty expires twenty-four months (24) after the final delivery. On a case per case basis, SPARK LASERS reserves the right to accept that this period be postponed till the installation of the laser set is made in the Customer’s system. This will have to be expressly stated in writings to SPARK LASERS by Customer.

For personal injuries and damage to consumers’ goods, SPARK LASERS remains liable in accordance with the applicable mandatory laws.

SPARK LASERS’ aggregate liability vis-à-vis Customer, whether in contract, warranty, tort or otherwise, arising out of, connected with, or resulting from the performance or non-performance of any sale of product or service agreement shall in no event exceed the contractual price of the related product or service.

8. Warranty Limitations

This warranty excludes and does not cover defects or damage resulting from any of the following: output terminations (including without limitation bare fiber, fiber cables, fiber connectors, external couplers and collimators); back reflection; unauthorized modification, misuse, disassembly or opening, neglect, or damage from accident; operation outside environmental specifications or product ratings; user software or interfacing; components and accessories manufactured by companies other than Spark Lasers, which have separate warranties; improper or inadequate installation, site preparation or maintenance; or failure to follow information and precautions contained in the operating manual. All products or components (including software) identified as experimental, prototypes or to be used in field trials are not warranted and are provided to the purchaser on an “as is” basis.

 

Spark Lasers assumes no responsibility for purchaser supplied material. Products and repaired products may contain components that have been previously used in other product units provided that the products meet or exceed Spark Lasers’ specifications for newly manufactured products.

 

The purchaser must give prompt notification to Spark Lasers of any claim under the warranty in writing. Spark Lasers has no responsibility for warranty claims more than 30 days after the claimed defect is discovered by the use. The purchaser is responsible for providing appropriate utilities and operating environment as stated in the operating manual and the specifications.

This warranty applies only to the original purchaser at the initial installation or delivery point. The purchaser must make all claims under this warranty and no claim will be accepted from any third party.

 

EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH ABOVE, SPARK LASERS SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS TO PURCHASER, INCLUDING WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES, SUCH AS FREEDOM FROM INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

THE REMEDIES PROVIDED HERIN ARE PURCHASERʼS SOLE AND EXCLUSIVE REMEDIES. IN NO EVENT SHALL SPARK LASERS BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THE PRODUCT (INCLUDING LOSS OF PROFITS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY. SPARK LASERSʼ MAXIMUM LIABILITY WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAID FOR THE PRODUCT BY PURCHASER. THESE LIMITATIONS MAY NOT APPLY TO YOU UNDER THE LAWS OF CERTAIN JURISDICTIONS.

9. Disputes

Unless the parties agree otherwise, any dispute arising out of, or in connection with these Terms shall be finally settled by the authorized jurisdiction of the Commerce Law Court of Bordeaux, France, in accordance with the Rules, Laws and Procedures of FRANCE.