Terms and Conditions of Sale

Standard Terms and Conditions of Sale

1.    DEFINITIONS:

CUSTOMER” shall mean the company that purchases Product/Services pursuant to the Order.

Delivery Point” shall mean the location of delivery of Product stated in the Order.

"Intellectual Property” shall mean technical information and data of all kinds, whether subject to statutory protection or not, included in the Software and Products/Services, such as without limitation, inventions, know-how and trade secrets, or other confidential or proprietary information.

Order” shall mean the agreement between SELLER and the CUSTOMER (individually “Party” and collectively “the Parties”) for the sale and purchase of the Product/Services that incorporates by reference these Terms and Conditions of Sale and any contemporaneous writing or Quote.

Product” means all components, spare parts, goods, product, or materials of any kind, which are supplied by SELLER under the Order.

Third Party Products” shall mean products and software of a third party vendor. If Third Party Products are supplied by the SELLER under the Order, notwithstanding anything to the contrary, such supply is made on a “pass-through” basis only and is subject to the terms and conditions of the third party vendor, including but not limited to warranties, licenses, indemnities, limitation of liability, prices and changes thereto. For time and materials orders, Third Party Products are quoted subject to price changes imposed by third party vendors between the date of the Order encompassing such Third Party Products and the date of SELLER’s invoice related to that Third Party Product.

RMA” shall mean return merchandise authorization.

Software” shall mean computer software programs, in object code form including firmware and custom software, and instructions manuals, specifications and related documentation in written or electronic form, their related instructions manuals and documentation, for which SELLER grants CUSTOMER a license under the Order.

Quote” means the written quote or tender submitted by the SELLER to CUSTOMER.

Services” means all services, including without limitation, maintenance, installation, and non-recurring engineering services, provided under the Order.

Specifications” shall mean the SELLER’s standard specifications applicable to the Product at the time of execution of the Order or the specific requirements mutually agreed upon between the Parties in Orders in relation to the Product.

SELLER” shall mean Reflex Photonics Inc. entity or business supplying Product or Services to CUSTOMER under an Order.

Warranty” or “Warranties” means the warranties set forth in Article 9 herein.

Warranty Period” means the warranty period set forth in Article 9 herein.

2.    OFFER AND GOVERNING PROVISIONS:

Each Quote and Order acknowledgement issued by SELLER (i) is an offer by SELLER to sell the Products and/or Services described in it in accordance with these Terms and Conditions of Sale, (ii) is not an acceptance of any offer made by the CUSTOMER, and (iii) is expressly conditioned upon the CUSTOMER's assent to these Terms and Conditions of Sale and waiver of any differing terms of conditions. Such assent and waiver is evidenced by CUSTOMER’s Order (any contrary terms or conditions of which shall be disregarded) or by accepting delivery of the first shipment hereunder. SELLER rejects any additional or different terms contained in any purchase order or other communication previously or hereafter provided by CUSTOMER to SELLER including any acknowledgement, shipping documents, terms and conditions or otherwise. No such additional or different terms or conditions will be of any force or effect. The terms of the Order will be the entire agreement between CUSTOMER and SELLER on the subject of the transaction that it describes and there are no conditions to that agreement that are not part of the Order. These Terms and Conditions of Sale may be modified only by a written document signed by duly authorized representatives of SELLER and CUSTOMER. If the Product, Software, or Services are to be use in the performance of a U.S. Government prime contract or subcontract, CUSTOMER agrees that the Product, Software, and Services provided are "commercial items" as that term is defined at FAR 2.101.

3.    MINIMUM VALUE OF ORDER:

Any Order shall be for an aggregate minimum purchase amount of one thousand five hundred U.S Dollars ($1,500), unless otherwise agreed upon between the Parties.

4.    PAYMENT:

(A) Payment in full of the purchase price shall be made in United States currency within 30 days of the date of invoice and may only be paid by electronic bank transfer, unless otherwise agreed by the parties in writing. Payment shall be made for the Products and/or Services without regard to whether the CUSTOMER has made or may make any inspection. If shipments are delayed by the CUSTOMER, payments are due from the date when the SELLER is prepared to make shipments. Products held for the CUSTOMER are at the CUSTOMER’s sole risk and expense.

(B) CUSTOMER acknowledges that SELLER has the right to reassess CUSTOMER’s creditworthiness from time to time. To the extent such is in accordance with law, in the event there is a decline in CUSTOMER’s creditworthiness, SELLER may, upon thirty (30) days written notice, revise the payment terms between the parties. Upon request, CUSTOMER shall provide financial data evidencing the CUSTOMER’s worth in order for SELLER to determine the creditworthiness of CUSTOMER. Such information shall include, but not be limited to, annual reports, balance sheets, and bank records. Payments advices from CUSTOMER shall include the following information: invoice number, amount of payment, and Order number.

(C) If CUSTOMER is delinquent in its payment obligations, without prejudice to any other remedies available to it by law or in equity, SELLER may demand immediate payment and at SELLER’s option (i) suspend all further deliveries to be made under the purchase order or any further performance under any other contract with CUSTOMER or CUSTOMER’s affiliates, in which event CUSTOMER shall not be released in any respect from its obligations to SELLER under the purchase order; (ii) recover all costs of collection including but not limited to reasonable attorneys’ fees; (iii) repossess the Product for which payment has not been made; (vi) charge interest at 1.5% per month on the past due amount, not to exceed the interest percentage allowed by law; and (vii) reassess the credit worthiness of CUSTOMER and change any current payment terms. Any discount from SELLER’s rates, if any, shall cease to apply to the delinquent invoice, CUSTOMER shall be invoiced for such differences in cost, and shall immediately pay the resulting invoice.

(D) CUSTOMER shall not set off or recoup invoiced amounts or any portion thereof against sums that are due or may become due from SELLER and/or its affiliates.

5.    REJECTION OF PRODUCT:

CUSTOMER shall have ten (10) days from arrival of Product at the Delivery Point to notify SELLER of rejection of Product for non- conformity with the Order. Any notice of rejection must be in writing, identify the Order and describe all defects of the Product on which CUSTOMER intends to rely. No Products shall be returned without SELLER’s express instructions.

6.    CANCELLATION:

(A) SELLER at its option and in addition to its other remedies may without liability cancel the Order or refuse shipment, if (a) CUSTOMER is in default in any payments or other performance due SELLER under the Order or any other agreement (b) CUSTOMER becomes insolvent or a petition in bankruptcy is filed with respect to CUSTOMER (or similar event) or (c) causes beyond SELLER’s control or the control of SELLER’s suppliers or subcontractors prevent or make it impossible to assure the SELLER’s timely performance. No sum will be due by SELLER to the CUSTOMER in connection with the exercise of such cancellation right.

(B) Unless otherwise specified, all quantities of Products shall be requested by CUSTOMER for delivery no more than twelve (12) months from the date of SELLER receipt of the Order, otherwise the Order may be cancelled by SELLER and CUSTOMER shall be liable for cancellation charges as provided for herein.

(C) If in SELLER's sole judgment, CUSTOMER’s financial condition does not justify the terms of payment specified herein, SELLER may cancel the Order and CUSTOMER shall be liable for cancellation charges as provided for herein, unless CUSTOMER immediately pays for all Products and/or Services, which have been delivered and pay in advance for all Products and/or Services to be delivered.

(D) CUSTOMER may cancel the remaining unfilled portion of the Order only upon written consent of SELLER and payment of the full price for that portion of the Order that SELLER has substantially completed at time of cancellation, plus reasonable cancellation charges which shall include the full profit plus all costs incurred in connection with the canceled portion of the Order such as overhead and administrative costs, commitments made by SELLER as a consequence of the Order and the cost of all work-in-progress. Cancellation charges shall not exceed the purchase price of the canceled portion of the Order. If CUSTOMER cancels the Order, CUSTOMER shall provide written notice of cancellation to SELLER.

7.    LIENS; TITLE; RISK:

Title and risk of loss to Product passes to CUSTOMER on delivery of Product to the carrier at the shipping point. CUSTOMER hereby grants to SELLER a security interest in the Product and any property owned by the CUSTOMER (including CUSTOMER’s beneficial rights to property leased by CUSTOMER) in the possession of SELLER or any of SELLER’s affiliates, at any time, to secure all amounts owed by CUSTOMER to SELLER under the Order.

8.    DELIVERY:

Delivery dates are estimates only. All delivery hereunder is per Incoterms 2010 via EXW SELLER’s facility in Kirkland, Quebec, Canada, unless otherwise agreed by the Parties in the Quote.

9.    WARRANTIES:

(A) SELLER warrants the Product manufactured by SELLER for a period of twelve (12) months from the delivery date (“Warranty Period”) will materially conform to SELLER’s standard specifications available from the SELLER for such Product at the time of the issuance of the Order or to the Specifications agreed between the Parties, including drawings or descriptions, specification sheets, drawings, notes and technical data for such Product. SELLER further warrants that Product, at the time of their delivery, will be free from defects in material and workmanship for the Warranty Period.

(B) The express Warranty set forth in the first sentence of this paragraph shall be the only warranty given by SELLER with respect to the Product/Services provided.

(C) For Third Party Products not manufactured by SELLER, SELLER's only responsibility is to assign to its CUSTOMER any manufacturer’s warranty that does not prohibit such assignment.

(D) Product and parts that are consumed in normal operation are not covered by this Warranty.

(E) If the CUSTOMER discovers a defect within the applicable Warranty Period, it must be reported in writing to SELLER’s service department immediately upon discovery.

(F) Within a reasonable time after proper notification, SELLER shall, during its normal business hours, Monday through Friday, correct any defect covered by this Warranty with either new or used replacement parts, without charge. Following SELLER’s approved RMA, the defective Products shall be returned to SELLER with the shipping fees prepaid by CUSTOMER. The above remedies are the exclusive remedies of CUSTOMER, and the sole responsibility of SELLER, for breach of this Warranty as to repaired or replaced Product(s). SELLER'S LIABILITY FOR BREACH OF ANY WARRANTY SHALL BE LIMITED TO THE REMEDIES PROVIDED HEREIN.

(G) The Warranties cease to be effective if CUSTOMER fails to operate and use the Product sold hereunder in a safe and reasonable manner or in accordance with SELLER’s written instructions or Specifications.

(H) CUSTOMER shall not be entitled to any remedy under the Warranties with respect to: (i) Product/Services that has been subjected to any alteration, disassembly, tampering, modification, or repair without prior written authorization by SELLER; (ii) Product/Services subjected to experimental running or any type of operation or use other than that for which the Product/Services is designed; (iii) Product/Services from which SELLER and/or vendor’s trademark or serial number has been altered, removed, or obliterated without SELLER’s written permission, excluding any alteration, removal, or obliteration directly caused by accident or mishap; (iv) Product/Services that has been in storage or immobilized for one (1) year or more after delivery to the DeliveryPoint.

(I) MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED (EXCEPT WARRANTIES OF TITLE), AND SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR OF NON-INFRINGEMENT; AND THE EXPRESS WARRANTY SET FORTH IN THIS ARTICLE IS IN LIEU OF ANY SUCH WARRANTIES AND ANY OTHER OBLIGATION OR LIABILITY ON THE PART OF SELLER.

(J) The Warranties are non-transferable and are applicable only to the original CUSTOMER.

10. LIMITATIONS OF LIABILITY AND INDEMNITY:

(A) General Limitations. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE ORDER OR THE USE OF THE PRODUCT/SERVICES PROVIDED HEREUNDER, REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE PRODUCT OR SERVICES, RETESTING, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, LOSS OF DATA, OR BUSINESS INTERRUPTION, REGARDLESS WHETHER SUCH CLAIM OR CLAIMS FOR DAMAGES IS BASED ON BREACH OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT OR ON ANY STRICT LIABILITY THEORY. NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST SELLER MORE THAN TWELVE (12) MONTHS AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED.

(B) Specific Limitations. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THE ORDER, OR ANY USE OF ANY PRODUCT PROVIDED HEREUNDER, EXCEED THE TOTAL AMOUNT OF THE APPLICABLE ORDER UNDER WHICH THE PRODUCTS WERE PURCHASED WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED REGARDLESS WHETHER SUCH CLAIM OR CLAIMS IS BASED ON BREACH OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT OR ON ANY STRICT LIABILITY THEORY. EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, SELLER SHALL NOT BE RESPONSIBLE FOR ANY CLAIM AGAINST CUSTOMER BY A THIRD PARTY. THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST THE PARTICULAR UNITS SOLD TO CUSTOMER UNDER THE ORDER SHALL NOT ENLARGE OR EXTEND THIS LIMIT.

(C) CUSTOMER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THE ORDER AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THE ORDER WOULD BE SUBSTANTIALLY DIFFERENT.

(D) SELLER shall not be liable for any total or partial failure to deliver, for delay in delivery or production, or for any losses or damage to CUSTOMER, or to the Product/Services occasioned by delays, in the performance of SELLER’s obligations, due to: (i) any cause beyond SELLER’s reasonable control or the control of SELLER’s suppliers or subcontractors, whether similar or dissimilar to any of (ii) through (xii) to follow; (ii) any epidemic, pandemic or widespread occurrence of an infectious or contagious disease or virus, and any actions recommended, imposed or declared by a public authority in response thereto including special measures, quarantine, self-isolation, travel restrictions and/or curfews, (iii) an act of God, flood, drought, earthquake or other natural disaster; (iv) any act or omission of CUSTOMER; (v) any terrorist attack, civil war, civil disturbance, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, or declaration of a state of emergency; (vi) any nuclear, chemical or biological contamination or sonic boom; (vii) any collapse of buildings, fire, explosion or accident; (viii) any labour or trade dispute, strikes, industrial action or lockouts; (ix) any interruption or failure of utility service; (x) the insolvency or other inability or failure to perform by suppliers or sub- contractors, or delays in transportation; or (xi) any country ceasing to be a member of the European Union, the European Economic Area and/or the European Economic and Monetary Union, regardless of which countries, provinces or territories comprise such country at such date and/or the expiry of any transition period under any withdrawal agreement between the European Union and a departing or former member state; or (xii) any other commercial impracticability including any action taken by a government or public authority, changes in laws and regulations, or failure to grant a necessary license or consent.

(E) CUSTOMER will protect and indemnify SELLER against all claims arising out of patents, designs, trade secrets, copyrights, or trade names with respect to Products manufactured wholly or partially to CUSTOMER's designs or specifications, including any costs, expenses, loss, attorneys' fees, settlement payments, or damages.

11. PRICES, TAXES AND CURRENCY:

Prices for Product shall be in accordance with the Quote.

(A) The Quote and the Order Price exclude all sales taxes, value-added taxes, import and export duties and any other taxes, surcharges, duties or tariffs of any kind now existing or hereafter imposed upon SELLER, its personnel or subcontractors or their properties in any country or territory either directly or indirectly in respect of the production, sale, supply, delivery, license export and import, or use of the Product. CUSTOMER shall be responsible for all such taxes, duties and charges. If such charges are not collected at the time of payment CUSTOMER will hold SELLER harmless.

(B) If SELLER is required to impose, levy, collect, withhold or assess any such taxes, duties and charges, SELLER shall invoice CUSTOMER for such taxes, duties and charges unless CUSTOMER furnishes SELLER with an exemption certificate or other equivalent documentation demonstrating its exemption from such taxes, duties and/or charges.

(C) If CUSTOMER is required by law to make any tax withholding from amounts paid or payable to SELLER, (i) the amount paid or payable shall be increased to the extent necessary to ensure that SELLER receives a net amount equal to the amount that it would have received had no taxes been withheld; (ii) CUSTOMER shall forward proof of such legally required withholding to SELLER.

(D) CUSTOMER shall remit the amount due on the invoice in the currency indicated on the invoice.

12. INVOICING:

Invoices shall be sent to the address specified in the Order. Should CUSTOMER dispute any invoice, CUSTOMER shall notify SELLER of the nature of the dispute in writing within fifteen (15) days of the invoice date. If CUSTOMER does not notify SELLER of any dispute within fifteen (15) calendar days of the invoice date, then the invoice is deemed to have been accepted and invoice payment is required to be made on the payment due date per these Terms and Conditions of Sale. Notwithstanding any dispute regarding the invoice, CUSTOMER shall pay the undisputed portion of the disputed invoice.

13. MERGER AND SEVERABILITY:

The Order contains the total agreement of the Parties, and all agreements entered into prior to or contemporaneously with the execution of the Order are excluded, whether oral or in writing, except that a contemporaneous writing, signed by both Parties, and firmly attached to the Order, shall be considered part hereof. If any provision of the Order shall be determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not effect the remaining provisions of the Order, all of which shall remain in full force and effect.

14. GOVERNING LAW AND FORUM:

The Order shall be governed by, and construed in accordance with, the laws of the province of Quebec and of Canada as applicable therein, without the application of conflict of laws principles. THE ORDER SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. All disputes will be submitted to the district courts of Montreal, province of Quebec, Canada. No action in law or equity arising out of the Order may be brought by CUSTOMER more than one (1) year after the cause of action has first arisen. SELLER shall have the right to collect from CUSTOMER its reasonable expenses, including attorneys’ fees, incurred in enforcing the Order. The rights and obligations herein shall survive completion of the final payment under the Order.

15. EXPORT AND IMPORT CONTROLS, ECONOMIC SANCTIONS; NOTIFICATION:

CUSTOMER acknowledges and agrees that where the ultimate destination of the Products, technology, Software, or Services sold hereunder is not Canada, unless otherwise stated in writing. CUSTOMER shall not authorize or permit its employees, distributors, customers, brokers, freight forwarders, and/or agents to transfer, export, re-export, or import any of the Products, technology, Software, or Services to any person without complying with applicable export, import, and economic sanctions laws and regulations of Canada, the United States, the United Kingdom, the European Union, or any other applicable jurisdictions. CUSTOMER agrees to notify SELLER immediately if CUSTOMER or the end-user (if not the CUSTOMER and known) is specifically or otherwise effectively listed on any relevant government restricted or prohibited parties lists, including the U.S. Denied Persons List, Entity List, Sectoral Sanctions Identifications List, or Specially Designated Nationals List, or if the export privileges of CUSTOMER or any relevant third party whom CUSTOMER will involve in this transaction (including its customer, if applicable), are otherwise denied, suspended or revoked in whole or in part by any relevant government authority. CUSTOMER shall ensure that the Products, technology, Software, or Services are not used in relation to chemical, biological or nuclear weapons, or missiles capable of delivering such weapons. CUSTOMER shall indemnify SELLER against any and all direct, indirect and punitive damages, loss, costs (including attorney’s fees and costs) and other liability arising from claims resulting from CUSTOMER’s breach of this Clause 15.

16. NOTIFICATION:

CUSTOMER agrees to notify SELLER immediately if CUSTOMER is listed in any U.S. Denied Persons List, Entity List, or Specially Designated Nationals List, or if CUSTOMER’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. Government entity or agency.

17. LICENSE:

(A) In consideration of the receipt of full payment of the Products/Services, and subject to CUSTOMER’s compliance with its obligations under the Order, SELLER hereby grants to CUSTOMER a non-exclusive license to use the Software, the Intellectual Property and the related documentation, for the sole purpose of CUSTOMER’s use to the extent necessary in connection with the use of the Products/Services. Use by CUSTOMER of the Products/Services conclusively evidences its acceptance of this license herein and the Order.

(B) CUSTOMER agrees to treat the Software, the Intellectual Property and related documentation as confidential and to not copy, reproduce, or otherwise disclose the Software, the Intellectual Property and related documentation to third parties. CUSTOMER agrees to not disassemble, decompile, reverse assemble, reverse engineer, create derivative works from or otherwise translate, customize, localize, modify, add to, or in any way alter, rent, or loan the Software, the Intellectual Property or related documentation. CUSTOMER agrees to defend, indemnify and hold harmless SELLER from all damages and third party claims arising from unauthorized use or transfer of the Software or the Intellectual Property.

(C) If the Software is licensed for use in the performance of a U.S. Government prime contract or subcontract, CUSTOMER agrees that, consistent with FAR 12.211 and 12.212, commercial computer software, computer software documentation and technical data for commercial items are licensed under SELLER’s standard commercial license.

(D) This license herein shall apply generally to SELLER’s Software and Intellectual Property. Third party product software licenses are separate end user license agreements (“EULA”) and not issued pursuant to this license herein.

18. INTELLECTUAL PROPERTY OWNERSHIP:

(A) Title to the Intellectual Property within the Software and the Products/Services shall at all times remain with SELLER. Notwithstanding delivery of any Product/Service, nothing in these Terms and Conditions of Sale shall have the effect of granting or transferring to, or vesting in, CUSTOMER any Intellectual Property rights in or to any Software or Product/Service. CUSTOMER agrees that the Intellectual Property in all enhancements, related documentation, and derivative works are, and will remain the sole property of SELLER and includes valuable trade secrets.

(B) Any and all Intellectual Property generated by SELLER from, or arising as a result of, work undertaken in connection with the Order shall be the sole and exclusive property of SELLER, notwithstanding the source of payment or funding. SELLER reserves the right to protect the same by securing appropriate Intellectual Property rights therein.

19. CODE OF BUSINESS ETHICS:

SELLER is committed to conducting its business ethically and lawfully. To that end SELLER, through its ultimate parent company, Smiths Group plc, maintains a Code of Business Ethics and a process for reporting unethical or unlawful conduct. SELLER expects that the CUSTOMER will also conduct its business ethically and lawfully. If the CUSTOMER has cause to believe that SELLER or the CUSTOMER or any of their respective affiliates, employees or agents has behaved in a manner that violates the Code of Business Ethics, CUSTOMER is encouraged to report such behavior to SELLER or to Smiths Group plc. Smiths Group plc’s Code of Business Ethics and the process by which to report such violations of the Code of Business Ethics are available here.

20. ASSIGNMENT:

CUSTOMER shall not assign the Order without the prior written consent of SELLER, and any purported assignment shall be void. SELLER may assign the Order at any time without notice to CUSTOMER.

21. RELATIONSHIP:

Nothing in this Order shall be construed to place the Parties in the relationship of partners or joint ventures, and the Parties shall have no power to obligate or bind the other in any manner whatsoever.

22. HEADINGS:

Any headings or paragraph titles are for the convenience of reference only and shall not define, limit, or extend the scope or intent of the Order or any provision thereof.

23. PROPRIETARY INFORMATION STATEMENT:

The Quote and the Order contains information proprietary to SELLER. No part of this information may be disclosed, reproduced or transmitted in any form without the prior written permission of SELLER.

24. WAIVER:

No waiver by SELLER of any breach of the Order by the CUSTOMER shall be considered as a waiver of the subsequent breach of the same or any other provision.

25. SEVERABILITY:

If any provision or portion of the Order shall be adjudged invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, that provision or portion of the Order shall be deemed omitted and the remaining provisions and portions shall remain in full force and effect.

26. AMENDMENTS:

Any amendment to the terms of the Order shall only be effective if made in writing and signed by SELLER and CUSTOMER.

27. SURVIVORSHIP:

The provisions of the Order that by their nature survive final acceptance under any Order, expiration, cancellation or termination of any Order shall remain in full force and effect after such acceptance and payment for the period specified herein, or if not specified then for the maximum time allowed by law. These provisions are: (i) Definitions, Article 1; (ii) Payment Terms, Article 4; (iii) Liens, Title, Risk, Article 7; (iv) Warranties, Article 9; (v) Limitation of Liability and Indemnity, Article 10; (vi) Prices, Taxes and Currency, Article 11; (vii); Governing Law and Forum, Article 14; (viii) Export and Import Controls, Economic Sanctions; Notification, Article 15; (ix) License, Article 17; (x) Intellectual Property, Article 18; (xi) Code of Business Ethics, Article 19; and (xii) Headings, Proprietary Information, Waiver, Severability, Amendments and Survivorship, Articles 22 - 28.

28. LANGUAGE:

The Parties acknowledge that they have requested and are satisfied that these Terms and Conditions of Sale and all related documents be drawn in the English language. Les Parties reconnaissent leur volonté expresse que les présents Terms and Conditions of Sale et les documents qui s’y rattachent soient rédigés en langue anglaise.