Customer Terms and Conditions

NOTICE: THIS SALES TRANSACTION, INCLUDING, BUT NOT LIMITED TO, ANY OFFER, QUOTATION, ORDER CONFIRMATION, ORDER ACCEPTANCE, INVOICE OR OTHER DOCUMENTS (“SELLER SALES TRANSACTION DOCUMENTS”) PROVIDED BY SUMITOMO ELECTRIC LIGHTWAVE CORP. (“SELLER”) FOR THE SALE OF ANY PRODUCTS THEREIN (“PRODUCTS”) (COLLECTIVELY, “SALES TRANSACTION”) IS SUBJECT TO AND CONDITIONED UPON ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS AND CONDITIONS OF SALE (THESE “TERMS”).  THESE TERMS AND CONDITIONS SHALL GOVERN THE SALES TRANSACTION AND PREVAIL OVER ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY A PURCHASER OF PRODUCTS (“PURCHASER”), WHETHER INCLUDED IN PURCHASER’S PURCHASE ORDER OR NOT, OR ANY OTHER DOCUMENT REFERENCED OR PROVIDED BY PURCHASER TO SELLER; FURTHERMORE, ANY SUCH PURCHASER’S TERMS AND CONDITIONS SHALL BE WITHOUT LEGAL EFFECT, ARE HEREBY EXPRESSLY REJECTED, AND WILL NOT BE BINDING UPON, SELLER.  FULFILLMENT OF THE SALES TRANSACTION DOES NOT CONSTITUTE ACCEPTANCE OF ANY OF PURCHASER’S TERMS AND CONDITIONS AND DOES NOT SERVE TO MODIFY OR AMEND THESE TERMS. SELLER’S ENGAGEMENT IN THE SALES TRANSACTION IS EXPRESSLY LIMITED TO, AND EXPRESSLY MADE CONDITIONAL ON, PURCHASER’S ACCEPTANCE OF THESE TERMS. PURCHASER’S ACCEPTANCE OF THE PRODUCTS SHALL BE DEEMED AN ACCEPTANCE OF THESE TERMS AND SHALL SUPERSEDE, NULLIFY AND VOID ANY OTHER TERMS, CONDITIONS, REPRESENTATIONS, UNDERSTANDINGS, IN ORAL OR WRITTEN FORM.  SELLER OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERM. THE SELLER SALES TRANSACTION DOCUMENTS AND THESE TERMS ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE SALES TRANSACTION, NOTWITHSTANDING ANY PRIOR COURSE OF DEALINGS, CUSTOM OR USAGE OF TRADE, OR COURSE OF PERFORMANCE.  ALL PRODUCTS PROVIDED TO PURCHASER BY SELLER SHALL BE SUBJECT TO THESE TERMS, WHETHER OR NOT LISTED ON A SALES ORDER, PURCHASE ORDER OR ANY OTHER DOCUMENT REFERENCED OR  PROVIDED BY PURCHASER TO SELLER.

  1. Acceptance of Order. All orders received by SELLER are subject to final written acceptance or confirmation by SELLER and no orders are binding upon SELLER until so accepted.

  2. Delivery. Unless otherwise specified by SELLER in writing, for deliveries within the U.S. of Products manufactured by SELLER, shipments shall be FOB (Incoterms 2020) SELLER’s facility Raleigh, North Carolina, for deliveries to the U.S. of Products manufactured by SELLER’s affiliates overseas, shipments shall be EX WORKS (Incoterms 2020) SELLER’s overseas affiliate’s facility, and for deliveries outside of the U.S., shipments shall be EX WORKS (Incoterms 2020) SELLER’s overseas affiliate’s facility.  Delivery by SELLER is conditional on PURCHASER’s compliance with the Seller Sales Transaction Documents and these Terms and on the timely receipt by SELLER of documents necessary for the completion of the order and any required down payment.  Partial deliveries of Products are permissible.  SELLER will not be liable for any delay in the performance of orders, or in the delivery or shipment of Products, or for any damages suffered by PURCHASER by reason of such delay.  Delivery is subject to PURCHASER maintaining credit satisfactory to SELLER.  SELLER may suspend or delay performance or delivery at any time pending receipt by SELLER of assurances from PURCHASER of the ability of PURCHASER to pay, including the payment to SELLER of the purchase price of Products, in full or in part, or the payment to SELLER of any outstanding amounts owed to SELLER.  Failure of PURCHASER to provide such assurances to SELLER shall entitle SELLER to delay delivery and/or cancel an order without further liability or obligation to PURCHASER.

  3. Prices. Unless otherwise specified by SELLER in writing, prices and quantities are quoted FOB (Incoterms 2020) SELLER’s facility Raleigh, North Carolina for deliveries within the U.S. of Products manufactured by SELLER, EX WORKS (Incoterms 2020) SELLER’s overseas affiliate’s facility for deliveries to the U.S. of Products manufactured by SELLER’s affiliates overseas, and EX WORKS (Incoterms 2020)  SELLER’s overseas affiliate’s facility for deliveries outside of the U.S.  Prices are subject to change by SELLER without notice to PURCHASER, except as otherwise provided in the Seller Sales Transaction Documents.  Only those prices set forth in the Seller Sales Transaction Documents will apply to that order.  Unless otherwise specified, prices do not include any sales, use, excise, privilege, or similar tax, or any export or import tax or duty levied by any government, and PURCHASER shall pay any such applicable taxes and duties.  Upon the request of SELLER, PURCHASER shall provide SELLER with a tax exemption certificate acceptable to the appropriate taxing authorities.

  4. Terms of Payment. Unless otherwise specified by SELLER in writing, the purchase price shall be due in full by PURCHASER by the payment date reflected on SELLER’S invoice.  Extension of credit, if any, may be changed or withdrawn by SELLER at any time.  SELLER may, at any time, require payment in advance of shipment or payment in advance of production.  Invoices not paid within thirty (30) days after their due date will be subject to interest charges.  Interest charges shall accrue and be added to the unpaid balance at the rate of one and one-half percent (1 ½%) per month on any overdue unpaid balance, or the maximum rate permitted by law, whichever is less.  PURCHASER shall reimburse SELLER for the costs of collection, including, without limitation, reasonable attorneys’ fees, of any overdue amount owed by PURCHASER to SELLER, and such collection costs shall also be subject to interest charges.  If any invoices are not timely paid, SELLER may suspend deliveries of undelivered Products until PURCHASER cures the related payment delinquencies.  PURCHASER may not retain or set-off any amounts owed to SELLER in satisfaction of any claims asserted by PURCHASER against SELLER.

  5. Title. Title to Products ordered hereunder passes to PURCHASER upon full payment of the purchase price.

  6. Cancellation/Changes. PURCHASER may not cancel or change an order once placed with and accepted by SELLER except with the prior written consent of SELLER and upon terms that will indemnify SELLER against any loss.  Upon notification and request by PURCHASER, SELLER may correct obvious mathematical or clerical errors.  SELLER may make any technical changes to Products, as SELLER may deem necessary, as long as such technical changes do not change form, fit or function of the Product.

  7. Excusable Delays. SELLER shall not be liable for delays or failure to perform due, directly or indirectly, to causes beyond SELLER’s control, including the inability of SELLER’s suppliers to deliver goods, services, or raw materials necessary for SELLER to perform the Sales Transaction, acts (including failure to act) of any governmental authority, wars (declared or undeclared), strikes or other labor disputes, fires, and natural calamities (such as floods, earthquakes, storms, and epidemics).

  8. Selection and Application. PURCHASER is solely responsible for proper selection and application of Products.  PURCHASER shall indemnify and hold SELLER harmless from and against any and all damages, claims, or expenses (including reasonable attorneys’ fees) arising out of or relating to improper selection, application, or abuse of Products.

  9. LIMITED WARRANTY. SELLER warrants to PURCHASER that, for a period of twelve (12) months from the date of shipment (“Warranty Period”) of the Products, such Products will be free from defects in material and workmanship.  To make a claim under this limited warranty, notice shall be given to SELLER in writing so long as such notice is within the Warranty Period and PURCHASER shall request a return material authorization (“RMA”).  If a RMA is used by SELLER, SELLER’s sole and exclusive liability shall be to repair or replace the Product, and such decisions shall be made in SELLER’s sole discretion.

  10. EXCEPT FOR THE WARRANTY SET FORTH HEREIN SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; WHETHER EXPRES OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

  11. LIMITATIONS AND EXCLUSION OF DAMAGES. IN NO EVENT SHALL SELLER’S LIABILITY TO PURCHASER UNDER ANY LEGAL THEORY OR BASIS EVER EXCEED THE PURCHASE PRICE OF NON-COMPLIANT PRODUCTS.  SELLER SHALL NOT BE LIABLE TO PURCHASER FOR INJURIES, LOSSES, OR DAMAGES RESULTING FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF PURCHASER, NOR SHALL SELLER BE LIABLE TO PURCHASER, IN ANY EVENT, FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, WHETHER ARISING FROM THE SALE OF PRODUCTS, ANY DEFECT IN PRODUCTS, AND ANY USE OF PRODUCTS, FROM FAILURE OR DELAY IN DELIVERY, FROM PURCHASER’S INABILITY TO USE PRODUCTS, OR OTHERWISE.

  12. Seller Proprietary Information. SELLER retains ownership of all intellectual property rights, including, without limitation, patents, trademarks, trade names, trade secrets, and copyrights, and of all drawings, illustrations, dimensions, specifications, copyrights, and performance projections, designs, plans, pricelists, customer lists, computations, and descriptions prepared by SELLER in connection with or relating to Products (“Proprietary Information”).  PURCHASER shall not copy or disclose to any other persons or use for any purpose whatsoever any or all of the Proprietary Information without SELLER’s prior written consent.  Pricing and other terms in offers, quotations, order confirmations and acceptances, and invoices are Proprietary Information.

  13. Patents, Trade Secrets, and Copyright Indemnity. PURCHASER shall hold SELLER harmless against any claim, and at PURCHASER’s expense defend any suit or proceeding, brought against SELLER based on an allegation that any of the designs, drawings, or specifications provided by PURCHASER to SELLER, or any Products resulting therefrom, or any part thereof, or the application or use of Products for PURCHASER’s intended purpose, constitute an infringement of any patent or copyright or misappropriation or misuse of any trade secret.

  14. Security Agreement. PURCHASER hereby grants to SELLER a purchase money security interest in Products and to the proceeds thereof.  PURCHASER shall execute and deliver any financing statements and other documents that SELLER may reasonably require for the protection of the security interest herby granted to SELLER by PURCHASER, and PURCHASER herby authorizes SELLER to do all other acts reasonably necessary for the establishment, perfection, preservation, and enforcement of such security interest.  PURCHASER shall maintain adequate insurance against casualty, loss, fire, or of the Products for so long as the security interest is in effect.

  15. Assignment. PURCHASER may not assign its rights or obligations hereunder without the prior written consent of SELLER and any purported assignment by PURCHASER without the consent of SELLER shall be of no effect.  For the purposes of this Section 15, a change in control of PURCHASER or an assignment by operation of law pursuant to merger or consolidation shall constitute an “assignment” requiring SELLER’S written consent.

  16. Termination. In addition to any remedies that may be provided under these Terms, SELLER may terminate a Sales Transaction with immediate effect upon written notice to PURCHASER, if PURCHASER: (a) fails to pay any amount when due under a Sales Transaction, a Seller Sales Transaction Document or these Terms; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

  17. Disputes. All disputes in any way relating to, arising under, connected with or incident to a Sales Transaction, a Seller Sales Transaction Document or these Terms shall be litigated, if at all, solely and exclusively in the North Carolina state courts for the County of Wake, or, if applicable, in the United States District Court for the Eastern District of North Carolina, and, if necessary, their respective corresponding appellate courts.  Each party shall forebear from filing a claim in any other county or jurisdiction and expressly submits itself to the personal jurisdiction of the State of North Carolina.  The performance and construction of a Sales Transaction, a Seller Sales Transaction Document or these Terms shall be governed by the substantive laws of the State of North Carolina without regard to conflict of law provisions.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to a Sales Transaction, a Seller Sales Transaction Document or these Terms.  If a suit, action or other proceeding of any nature whatsoever (including any contested matter or adversary proceeding under the U.S. Bankruptcy Code) is instituted in connection with any controversy arising out of a Sales Transaction or to interpret or enforce any rights hereunder or under a Seller Sales Transaction Document, the prevailing party shall be entitled to recover its attorneys’, paralegals’, accountants’ and other experts’ fees, and all other fees, costs and expenses actually incurred in connection therewith, as determined by the judge at trial or on appeal or review, in addition to all other amounts provided by law.  The prevailing party shall also be entitled to recover its post-judgment attorney fees and all other fees, costs and expenses incurred in attempting to collect on the judgment.  No action, regardless of form, arising out of a Sales Transaction may be brought by PURCHASER more than one (1) year after the cause of action has occurred.

  18. Construction of Agreement. The provisions contained in Seller Sales Transaction Documents (other than these Terms) are incorporated into these Terms by reference, and in the event that any provision of such documents conflicts with any provisions of these Terms, the provisions of such documents shall control (with the other provisions of these Terms continuing to apply to the Sales Transaction).  These Terms may not be amended, modified, or supplemented except by written agreement executed by PURCHASER and SELLER.  The provisions of Seller Sales Transaction Documents and these Terms are hereby deemed by the parties to be severable, and the invalidity or unenforceability of one provision shall not affect the validity or enforceability of any other provision.  PURCHASER and SELLER acknowledge that these Terms, together with the Seller Sales Transaction Documents, constitute the entire agreement between PURCHASER and SELLER with regard to the sale or transfer of Products, and supersede all prior oral or written statements of any kind made by the parties or their representatives.

  19. Compliance with Law.

(a)  General.  Each party shall comply with all applicable international, national, federal, state, and local laws, statutes, rules, regulations, and ordinances.  PURCHASER shall provide SELLER any documents and support reasonably required by SELLER to enable SELLER to fulfill its obligations under this Section 19.

(b)  Export Control.  PURCHASER acknowledges that Products, including any software, documentation and any related technical data included with, or contained in, such Products, and any products utilizing any such Products, software, documentation, or technical data (collectively, “Regulated Products”) may be subject to the U.S. export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations.  PURCHASER shall not, and shall not permit any third parties to, directly or indirectly, export, re-export, or release any Regulated Products to any jurisdiction or country to which, or any party to whom, the export, re-export or release of any Regulated Products is prohibited by applicable federal or foreign Law.  PURCHASER shall be responsible for any breach of this Section 19 by its, and its successors’ and permitted assigns’, parent, affiliates, employees, officers, directors, customers, agents, distributors, resellers, or vendors.  PURCHASER shall comply with all applicable federal and foreign Laws, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting or releasing any Regulated Products.

(c)  Anti-Corruption.  The parties to the Sales Transaction are committed to compliance with the laws of the jurisdiction where work will be performed  as well as the laws of other countries that are, or may be, of potential relevance, including all laws applicable to one or both of the parties relating to bribery, money laundering and/or corrupt payments, such as the U.S. Foreign Corrupt Practices Act (the “FCPA”), the UK Bribery Act of 2010 (the “UK Bribery Act”) and other applicable anti-corruption laws (together with the FCPA and the UK Bribery Act, the “Anti-Corruption Laws”).  Accordingly, the parties hereby represent and warrant that:

(i)  The parties are now in compliance with the Anti-Corruption Laws of any other countries or jurisdictions that are applicable to the transactions contemplated herein and will remain in compliance with all such laws for the duration of the Sales Transaction.  The provisions of the Sales Transaction and the transactions contemplated thereby, including the compensation of the parties, are legal and binding under the laws of the relevant jurisdictions, including, without limitation, all applicable Anti-Corruption Laws.

(ii)  The parties have not taken and will not take any actions in furtherance of an offer, payment, promise to pay or authorization of the payment or giving of money, or anything else of value, to any government official (including any officer or employee of a domestic or foreign government or government-controlled entity or of a public international organization, or any person acting in an official or representative capacity for or on behalf of any of the foregoing, or any political party or official thereof, or candidate for political office, or legislative, administrative or judicial officials whether or not elected or appointed) (“Public Officials”) or to any other person while knowing that all or some portion of the money or value will be offered, given or promised to a Public Official for the purposes of obtaining or retaining business, an advantage in the conduct of business or securing any improper advantage.

(iii)  The parties have not taken and will not take any actions in furtherance of an offer, payment, promise to pay or authorization of the payment or giving of, or a request or acceptance of, money or anything else of value, to or by any other person (whether or not a Public Official) while knowing that all or some portion of the money or value offered, given or promised to such other person is for the purpose of securing the improper performance of that person’s function or misuse of that person’s position.

(iv)  No part of the payments received by either party, directly or indirectly, will be used for any purpose which would cause a violation of the laws of any applicable jurisdiction including any applicable Anti-Corruption Laws.

(v)  Neither PURCHASER nor any owner, partner, officer, director or employee of PURCHASER or of any affiliate company of PURCHASER is or will become a Public Official during the term of the Sales Transaction without prior written notice to SELLER.