Definitions

  b) "Hardware" means photonic and related components and equipment, documentation, accessories, parts, and upgrades.

  c) "GPC Branded" means Products and Support bearing a trademark or service mark of General Photonics.

  d) "Product" means Hardware or Software listed in GPC's standard price list at the time of GPC's acceptance of Customer order, and including products that are modified, altered, or customized to meet Customer requirements ("Custom Products").

  e) "Software" means machine-readable instructions and data (and copies thereof) and related updates and upgrades, licensed materials, user documentation, user manuals, and operating procedures.

  f) Software License Information (“SLI”) is license information that is specific to a Software Product. SLI may be found in a file in the Software Product’s directory or as information that accompanies the Software Product or in GPC quotations.

  g) "Specification" means technical information about Products published in GPC Product manuals, user documentation, and technical data sheets in effect on the date GPC delivers Products to Customer.

  h) "Statement of Work" means an executed document that describes the Custom Support to be performed by GPC under the Support Terms section.

  i) "Support" means Hardware  repair, Software maintenance, training, and configuration, and other standard support services provided by GPC and includes "Custom Support" which is any agreed non-standard Support as described in a Statement of Work.

  j) "Transaction Document(s)" means an accepted Customer order and in relation to that order valid GPC quotations, GPC published technical data sheets or service descriptions, GPC limited warranty statements made available to Customer with Products, and mutually executed Statement of Work, all as provided by GPC, or other mutually executed documents that reference these GPC Single Order Terms ("Terms").

  k.) "Version" means a release of Software that contains new features, enhancements, and/or maintenance updates, or for certain Software, a collection of revisions packaged into a single entity and, as such, made available by GPC to its customers (also called a "Release").

Prices and Taxes

a) Prices. Product and Support prices are specified in   published GPC price lists at the time GPC receives Customer's order, or in a valid Transaction Document. Prices are subject to change at any time prior to GPC's acceptance of Customer's order, unless stated otherwise in a Transaction Document.

b) Price Validity. Unless prices are changed by GPC in accordance with these Terms, prices are valid for the period set forth in a Transaction Document. Product prices for an order remain valid for ninety (90) days from original order date unless otherwise quoted by GPC.

c) Taxes. Prices are exclusive of, and Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on GPC or on the Customer by any taxing authority (other than taxes imposed on GPC's income) related to Customer's order, unless Customer has provided GPC with an appropriate resale or exemption certificate for the delivery location. "Delivery location" means the location where GPC transfers title or possession of Products to Customer.

d) Withholding Tax. If Customer is required by law to withhold and remit tax relating to Customer's order, Customer shall:
   1)   be entitled to reduce the payment by the amount of such tax;
   2)   withhold and remit such tax to the applicable tax jurisdiction;
   3)   assist GPC to obtain the benefit of any reduced withholding tax under applicable tax treaties; and
   4)   furnish to GPC a tax certificate or other acceptable evidence of payment of such tax as required by the relevant taxing authorities.

e) Financing. Third party financing transactions require advance notice to GPC for appropriate tax treatment.

Customer Orders

a) Orders. Orders will be governed by these Terms and are subject to acceptance by GPC.

b) Cancellation. Customer may cancel an order for Standard Products  at no charge up to five (5) business days prior to the scheduled shipment date. Orders for Custom products and products that have been connectorized to customer specification may not be cancelled.

c) Extended Delivery Dates. Changes to orders that extend delivery dates beyond ninety (90) days from the order date shall be considered new orders at the prices in effect when GPC receives the changed order.

Delivery

a) Delivery. GPC will deliver Products by arranging shipping to the receiving area at the "ship to" address specified in Customer's order within the country in which GPC accepted the order. GPC may elect in its sole discretion to deliver Software, Deliverables, Specifications, or Product documentation by enabling electronic transmission to, or electronic access or download by Customer in the country where GPC accepted the order.

b) Delivery Charges. Transportation and handling charges are payable by Customer and will be specified in an GPC invoice unless otherwise specified in a Transaction Document. Special packing or shipping arrangements will be charged separately to Customer.

c) Delivery Requirements. If GPC is unable to meet Customer's Product delivery requirements, Customer may cancel that order, and such cancellation is Customer's sole remedy.

Payment

a) Payment Terms. Customer agrees to pay, without offset, all invoiced amounts within thirty (30) days of GPC's invoice date. GPC may change credit or payment terms for unfulfilled orders if, in GPC's reasonable opinion, Customer's financial condition, previous payment record, or relationship with GPC merits such change.

b) Customer Default. GPC may discontinue performance if Customer fails to pay any sum due, or if after ten (10) days written notice Customer has not cured any other failure to perform under these Terms.

c) Security Interest. GPC retains a security interest in Products until payment. Customer shall execute any paperwork required by GPC to effectuate any such security interest.

Warranty Provisions

a) Warranty Statements. GPC limited warranty statements for Hardware, Software and Support, as applicable, are contained in their respective sections of these Terms. The limited warranties in these Terms are subject to the terms, limitations, and exclusions contained in the limited warranty statement provided.

b) Transfer. Warranties are transferable to another party for the remainder of the warranty period subject to GPC license transfer policies and any assignment restrictions.

c) Delivery Date. Warranties begin on the date of delivery.

d) Exclusions. GPC is not obligated to provide warranty services or Support for any claims resulting from:
   1)   Negligent usage or environmental conditions that do not conform to GPC's site specifications;
   2)   Customer's non-compliance with Specifications or Transaction Documents;
   3)   Improper or inadequate maintenance or calibration
   4)   Modifications not performed or authorized by GPC;
   5)   Virus, infection, worm or similar malicious code not introduced by GPC; or
   6)   Abuse, negligence, accident, loss or damage in transit, fire or water damage, electrical disturbances, transportation by Customer, or other causes beyond GPC's control.

e) Non-GPC Branded Products and Support. GPC may provide third-party products, software, and services that are not GPC Branded "AS IS" without warranties of any kind, although the original manufacturers or third party suppliers of such products, software and services may provide their own warranties.

f) Disclaimer. THE WARRANTIES AND ANY ASSOCIATED REMEDIES EXPRESSED OR REFERENCED IN THESE TERMS ARE EXCLUSIVE. NO OTHER WARRANTY, WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED BY GPC OR MAY BE INFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT ALLOWED BY LOCAL LAW GPC DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

Intellectual Property Infringement

a) Third-Party Claims. GPC will defend or settle any third party claims against Customer alleging that GPC Branded Products or Support (excluding Custom Products and Custom Support) provided under these Terms infringes intellectual property rights in the country where they were sold, if Customer:
   1)   promptly notifies GPC of the claim in writing;
   2)   cooperates with GPC in the defense of the claim; and
   3)   grants GPC sole control of the defense or settlement of the claim.
   GPC will pay infringement claim defense costs, GPC-negotiated settlement amounts, and court-awarded damages.

b) Remedies. If such a claim appears likely, then GPC may modify the GPC Branded Products or Support, procure any necessary license, or replace the affected item with one that is at least functionally equivalent. If GPC determines that none of these alternatives is reasonably available, then GPC will issue Customer a refund equal to:
   1)   the purchase price paid for the affected item if within one year of delivery, or the Customer's net book value thereafter; or
   2)   if the claim relates to infringing Support, the lesser of twelve (12) months charges for the claimed infringing Support or the amount paid by Customer for that Support.

c) Exclusions. GPC has no obligation for any claim of infringement arising from:
   1)   GPC's compliance with Customer or third party designs, specifications, instructions, or technical information;
   2)   modifications made by Customer or a third party;
   3)   Customer non-compliance with the Specifications or the Transaction Documents

d) Sole and Exclusive. This sub-section states GPC's entire liability for claims of intellectual property infringement.

Intellectual Property Rights

No rights in copyright, patents, trademarks, trade secrets, or other intellectual property are granted by either party to the other except as expressly provided under these Terms. Customer will not register or use any mark or internet domain name that contains GPC's trademarks (e.g., "GPC", or "General Photonics").

Limitation of Liability and Remedies

a)                  Limitation of Liability. Except for the amounts in “Intellectual Property Infringement” (above)above and damages for bodily injury (including death) GPC's total aggregate liability is limited to the amount paid by Customer for:
   1)   the Product; or
   2)   Support during the period of a material breach up to a maximum of twelve (12) months;
   that in each case is the subject of the claim.

b) Disclaimer. EXCEPT FOR CLAIMS BY A PARTY FOR INFRINGEMENT OF THEIR INTELLECTUAL PROPERTY RIGHTS AGAINST THE OTHER PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL COSTS OR DAMAGES OF ANY KIND OR FOR ANY DOWNTIME COSTS; LOST BUSINESS, REVENUES, OR PROFITS; FAILURE TO REALIZE EXPECTED SAVINGS; LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA; OR SOFTWARE RESTORATION WHETHER OR NOT THAT PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH COSTS, EXPENSES, OR DAMAGES.

 TO THE EXTENT ALLOWED BY LOCAL LAW, THESE LIMITATIONS WILL APPLY REGARDLESS OF THE BASIS OF LIABILITY, INCLUDING NEGLIGENCE, MISREPRESENTATION, BREACH OF ANY KIND, OR ANY OTHER CLAIMS IN CONTRACT, TORT OR OTHERWISE.

General

a)                  Electronic Orders and EDI. Where facilitated under local law, the parties may do business electronically, including order placement and acceptance. Once accepted, such orders will create fully enforceable obligations subject to these Terms. Such orders and acceptances will be deemed for all purposes to be an original signed writing. Customer and GPC will adopt commercially reasonable security measures for password and access protection.

b) Internal Use. Products and Support acquired by Customer under these Terms are solely for Customer's own internal use and not for resale or sub-licensing.

c) Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control; however, this provision will not apply to Customer's payment obligations.

d) Assignment. Customer may not assign, delegate or otherwise transfer all or any part of its rights or obligations under these Terms without prior written consent from GPC. Any such attempted assignment, delegation, or transfer will be null and void. Assignments of GPC Software licenses are subject to compliance with GPC's Software license transfer policies.

e) Export and Import. By accepting this agreement you confirm that you are not located in (or a national resident of) any country under U.S. Economic embargo or sanction, not identified on any U.S. Department of Commerce Denied Persons List, Entity List of proliferation concern, on the US State Department Debarred Parties List or Treasury Department Designated Nationals exclusion list, and not directly or indirectly involved in the financing, commission or support of terrorist activities or in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the U.S. Export Administration Regulations (15 CRF 744) and hardware, software, technology, or services may not be exported, re-exported, transferred or downloaded to any such entity.

f) Governing Law. Disputes arising or raised in the United States will be governed by the laws of the State of California, excluding rules as to choice and conflict of law.

g) Bankruptcy. If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may cancel any unfulfilled obligations.

h) Survival. Any provisions in these Terms which by their nature extend beyond the termination or expiration of any sale or license of Products or Support will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns.

i) Notices. All notices that are required under these Terms will be in writing and will be considered effective upon receipt.

j) Entire Agreement. These Terms represent the entire agreement between GPC and Customer regarding Customer's purchase of Products and Support, and supersedes and replaces any previous communications, representations, or agreements, or Customer's additional or inconsistent terms, whether oral or written. In the event any provision of these Terms is held invalid or unenforceable the remainder of the Terms will remain enforceable and unaffected thereby.

k) Waiver. Neither party's failure to exercise or delay in exercising any of its rights under these Terms will constitute or be deemed a waiver or forfeiture of those rights.

l) Order of Precedence. Unless otherwise agreed or provided herein, documents will apply in the following descending order of precedence:
   1)   SLI;
   2)   the sections of these Terms;
   3)   the Statement of Work (if applicable);
   4)   all Transaction Documents.

GPC Hardware terms

Risk of loss

Risk of loss or damage, and title to Hardware, will pass to Customer and acceptance will occur upon delivery to the "ship to" address or, if special shipping arrangements are agreed to, upon delivery to Customer's carrier or designee.

1.                  Hardware-limited Warranty

GPC warrants GPC Branded Hardware against defects in materials and workmanship under normal use  and that it will materially conform to its Specifications for the time specified in the applicable Transaction Documents for a period of one year from date of delivery. GPC Branded Hardware may contain used parts that are equivalent to new in performance and reliability and are warranted as new.

2.                  Operation

GPC does not warrant that the operation of Hardware will be uninterrupted or error free, or that Hardware will operate in Hardware and Software combinations other than as expressly required by GPC in the Product Specifications or that Hardware will meet requirements specified by Customer. Customer may only use firmware embedded in the Hardware to enable the Hardware to function in accordance with its Specifications.

3.                  Exclusive remedies

Upon notice of a valid warranty claim during the warranty period and if provided reasonable access to the GPC Branded Hardware, GPC will, at its option, repair a defect in the GPC Branded Hardware, or correct a material non-conformance to Specifications, or replace such Hardware with Hardware of equal or better functional performance within 30 days.

GPC Software License Terms

1.                  License grant

GPC grants Customer a non-exclusive, non-transferable license to “Use”, in object code form, the Version or Release of the GPC Branded Software delivered from an GPC accepted order. For purposes of these Terms, unless otherwise specified in the SLI, “Use” means to install, store, load, execute, and display one copy of the Software on one device at a time for Customer's internal business purposes. Customer's Use of such Software is subject to these license terms, the applicable Use restrictions and authorizations, and applicable licensed locations for the Software specified in SLI (the “Software License”). The usage terms specified in the SLI for GPC Branded Software will not be materially more restrictive than the Use defined in this sub-section C1.

2.                  Ownership

This Software License confers no title or ownership and is not a sale of any rights in the Software..

3.                  Acceptance

Customer accepts Software upon delivery.

4.                  Upgrades

Software Versions or maintenance updates, if available, may be ordered separately or may be available through Software Support. GPC reserves the right to require additional licenses and fees for Software Versions or separately purchased maintenance updates or for Use of the Software in conjunction with upgraded Hardware or Software. When Customer obtains a license for a new Software Version through Software Support or purchases an upgrade license to a new Version, Customer's Software License for the earlier Version shall terminate. Software Versions are subject to the license terms in effect on the date that GPC delivers or makes the Version available to Customer.

b) Copy and Adaptation. Unless otherwise permitted by GPC, Customer may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software.

c) Copyright Notice. Customer must reproduce all copyright notices that appear in or on the Software (including documentation) on all permitted copies or adaptations. Copies of documentation are limited to internal use.

f) Changes. Customer will not modify, reverse engineer, disassemble, decrypt, decompile, or make derivative works of the Software. Where Customer has other rights mandated under statute, Customer will provide GPC with reasonably detailed information regarding any intended modifications, reverse engineering, disassembly, decryption, or decompilation and the purposes therefore.

5.                  License term and termination

Unless a different time period for the license is specified in the applicable SLI or quotation, the Software License

granted Customer will be perpetual, provided however that GPC may terminate the Software License upon notice for failure to comply with these terms.

6.                  Warranty

GPC Branded Software will materially conform to its Specifications.

7.                  Exclusive remedies

If notified of a valid warranty claim during the warranty period, GPC will, at its option, correct the warranty defect for GPC Branded Software, or replace such Software. If GPC is unable, within a reasonable time, to complete the correction, or replace such Software, Customer will be entitled to a refund of the purchase price paid upon prompt return of such Software to GPC.

8.                  Implied license

There are no implied licenses.