Comar Optics Limited
Standard Terms and Conditions of Sale 13a

These Terms no. 13a supersede all previous versions, and apply to all Orders and the Contract to the exclusion of any and all other terms that You may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

Definitions

In these terms, the following words shall have the following meanings:

“We”, “Us” or “Our” in these terms: Comar Optics Ltd.- Registered in England and Wales. Registered Office: Photon House, Station Road, Linton, Cambridge, CB21 4NW, UK. Company registration number 08395574.

“You” or “Your” in these Terms: the legal entity purchasing the goods and/or services from Us. (Note: We supply optics, optical components and sub-assemblies to businesses and institutions but do not supply to individuals as consumers - clause 16).

“Contract”: the contract between Comar (Us) and the Customer (You) for the supply of goods and/or services in accordance with these Terms.

“Force Majeure Event” has the meaning given in clause 12.2

“Intellectual Property Rights”: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, database rights, rights in designs, rights to confidential information including know-how and trade secrets and all other intellectual property rights in each case whether registered or unregistered which subsist or will subsist now or in the future in any part of the world.

“Order”: the order placed by You to Us for the supply of goods and/or services.

“Quotation”: the written quotation, if any, provided by Us for the supply of goods and/or services.

“Sales Order Confirmation”: written confirmation of Order issued by Us (including by email) for the supply of goods and/or services to You, in accordance with these Terms.

“Terms”: the terms and conditions set out in this document, issue 13a.

“Website”: the website at: www.comaroptics.com

2. Orders

1. 2.1 The Order constitutes an offer by You to purchase the goods and/or services specified in the Order in accordance with these Terms.
2. 2.2 The Order shall be deemed to be accepted when We issue a Sales Order Confirmation, or if no Confirmation is issued a delivery note, at which point the Contract shall come into existence.
3. 2.3 All goods and services are sold subject to availability.
4. 2.4 You shall be responsible for ensuring the accuracy and completeness of the terms of any Order, instructions, specifications and materials provided to Us and for ensuring that We receive all necessary information relating to the goods and/or services required in order to perform the Contract. It is important that You draw Our attention to any required changes to parts that We have manufactured for You before and ensure that amended specifications or drawings are given a different issue number.
5. 2.5 You are aware that it is not normally possible to make any changes to an Order once the Confirmation is issued (other than to dates for a scheduled or call off order within the agreed time period subject to clause 7.2)

3. Quotations

1. 3.1 A quotation for goods given by Us shall not constitute an offer. If a Quotation is provided, such prices will be valid for one month from the date of the Quotation.
2. 3.2 All prices quoted are exclusive of VAT and shipping –see clause 6.3

4. Description

1. 4.1 All goods are sold by written description as follows:
   1. (a) For goods with part numbers listed in Our online catalogue on the Website, (www.comaroptics.com/components/) the description is that shown on the Website at the time You place Your Order.
   2. (b) For other goods, including bespoke products manufactured and/or processed to Your drawings and/or specifications, the relevant description will be that given in the Sales Order Confirmation or in specification documents and drawings referred to therein.
2. 4.2 Catalogue descriptions are subject to amendment without notice.
3. 4.3 We shall not be liable for any obvious errors in the description of any goods displayed on the Website or any Quotation or Sales Order Confirmation.
4. 4.4 The images of the goods on Our website and catalogues are for illustrative purposes only.
5. 4.5 We reserve the right to amend the specification for the goods if required by any applicable statutory or regulatory requirements.

5. Warranty, use of products and limitation of liability – Your attention is particularly drawn to this clause

1. 5.1 Goods which are not to description when sold, if returned to Us within six months will be replaced, or if no longer available the price will be refunded. So far as permitted by law, this warranty replaces and excludes all other warranties or claims whatsoever in connection with goods sold.
2. 5.2 Claims must be made within 3 days for short delivery or damage in transit, within 28 days for non-delivery and apparent defects or errors, and within 6 months for any other matter. Goods may only be returned by prior approval from Us, using the RMA number provided see Returns & claims procedure (https://www.comaroptics.com/uploads/rma.pdf)
3. 5.3 Goods are supplied as components or subassemblies only and are not warranted as fit for any specific purpose or use. Any recommendations for applications disclosed to Us, or discussed with Us, are only suggestions for trial, tendered free of charge and You must not rely upon Our skill or judgment when specifying or purchasing.
4. 5.4 Except as expressly stated in these Terms, We do not give any representations, warranties or undertakings in relation to the goods or services. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, We will not be responsible for ensuring that the Goods are suitable for Your purposes.
5. 5.5 You must carry out Your own search of third-party Intellectual Property Rights to ensure that there is nothing that affects or restricts the use of the goods supplied by Us in Your specific application, product, instrument, market or other use. We will not be liable to You for any claim that the goods infringe third-party Intellectual Property Rights to the extent that such infringement arises from incorporation of the goods supplied by Us into other products, instruments or applications or use of the goods supplied by Us in combination with or in association with other goods or products whether supplied by Us or other parties.
6. 5.6 Where non-conformity of goods could cause personal injury or damage to equipment, or where replacement would entail substantial expense, You must (notwithstanding any certificate of conformity) verify before use all critical details of goods supplied.
7. 5.7 You agree that goods shall not without Our express written authority be:
   1. (a) used in such a way that they are critical to: (i) the flight or take-off or landing or navigation or safety of any aircraft or other aerial device, or spacecraft, (including but not limited to ground support or control equipment) or (ii) the safety or operation of nuclear installations; or
   2. (b) be supplied to any offshore exploratory drilling or production rig or platform or support vessel.
8. 5.8 You shall inform Your third-party customers in writing about the restrictions on use of the goods as set out in Clause 5.7 above.
9. 5.9 You shall hold harmless and indemnify Us against any and all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other reasonable professional costs and expenses) suffered or incurred by Us arising out of or in connection with any breach by You of clauses, 5.6, 5.7 and/or 5.8 .
10. 5.10 Nothing in these Terms shall limit or exclude Our liability for:
    1. (a) death or personal injury caused by Our negligence, or the negligence of Our employees, agents or subcontractors (as applicable);
    2. (b) fraud or fraudulent misrepresentation;
    3. (c) defective products under the Consumer Protection Act 1987 (to the extent applicable);
    4. (d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or.
    5. (e) any matter in respect of which it would be unlawful for Us to exclude or restrict liability.
11. 5.11 Subject to clause 5.10 Our total aggregate liability to You (regardless of whether such liability arises in tort (including negligence), contract, breach of statutory duty or in any other way and whether or not caused by negligence or misrepresentation), arising under or in connection with the Contract shall in no circumstances exceed the price of the individual goods and/or services giving rise to the liability.
12. 5.12 Subject to clause 5.10 We shall under no circumstances whatsoever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any consequential, indirect or special losses arising out of or in connection with a Contract, Order or Quotation.
13. 5.13 Subject to clause 5.10 We shall under no circumstances whatsoever be liable to You for any of the following (whether direct or indirect):
    1. (a) loss of profit or anticipated profit; (b) loss of data; (c) loss of use; (d) loss of production; (e) loss of business; (f) loss of opportunity; (g) loss of savings, discount or rebate (whether actual or anticipated); (h) harm to reputation or loss of goodwill; (i) any other pure economic loss;
       whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising out of or in connection with a Contract, Order or Quotation.
14. 5.14 In addition to the other exclusions in this clause (5) We shall be under no liability whatsoever to You:
    1. (a) in respect of any defect in the goods arising from any drawing, data, design or specification supplied by You
    2. (b) in respect of any defect arising from wear and tear, wilful damage, negligence, abnormal storage or working conditions, failure to follow Our instructions (whether oral or in writing), misuse or alteration or repair of the goods without Our approval;
    3. (c) if You make any further use of the goods after giving notice to Us under clauses 5.2 or 8.

6. Price

1. 6.1 Subject to Clause 6.4, the price of any goods and/or services will be as quoted in the Sales Order Confirmation.
2. 6.2 Prices published on Our Website are subject to change without notice and are given as a guide only.
3. 6.3 All prices quoted exclude VAT and shipping. VAT will be charged at the prevailing rate. There is a guide to shipping prices on the Website. (See also clause 13 re Exports)
4. 6.4 You accept that changes may be necessary to prices stated in the Sales Order Confirmation in case of:
   1. (a) a Force Majeure Event; (b) an increase of 50% or more in Our aggregate cost of manufacture and/or procurement and supply of the goods however caused, excluding any increases under Our direct control; (c) obvious error;

7. Delivery

1. 7.1 Delivery dates quoted are reasonable estimates and We will use reasonable endeavours to meet them, but as they can be affected by many causes beyond Our control, including for reasons of Force Majeure, no compensation will be due for delay in delivery however caused.
2. 7.2 For call-off orders, all goods must be taken within the agreed time period and paid for in accordance with clause 9. Any remaining goods will be shipped at the end of the agreed time period unless We at Our discretion agree in writing to an extension to this time period.
3. 7.3 Failure by Us in respect of any one or more deliveries shall not entitle You to treat such failure as a repudiation of further deliveries.

8. Returns

1. 8.1 Claims must be made within 3 days for short delivery or damage in transit , within 28 days for non-delivery and apparent defects or errors, and within 6 months for any other matter. You must notify Us using the link in 8.2 below and ensure that a reply is received from Us.
2. 8.2 Goods may only be returned with Our prior approval. A RMA number will be provided which must be quoted. See the Returns & claims procedure for instructions. (https://www.comaroptics.com/uploads/rma.pdf)

9. Payment

1. 9.1 You are required to pay in full for all goods and services prior to delivery unless You have an approved 30-day account with Us, in which case invoices must be paid within 30 days of invoice date.
2. 9.2 Credit facilities may be withdrawn or restricted at any time. Where goods ordered are ready or scheduled for delivery and credit is not available, We may send a pro-forma invoice, which shall be paid within 14 days.
3. 9.3 Goods which are specially made or ordered by Us may require payment with the Order. If after accepting an Order for such goods We become aware of anything substantially affecting Your creditworthiness (including default of more than 30 days on any debt) We may then request advance payment for the goods, which shall be due within 7 days of Our written request.
4. 9.4 We shall be entitled to charge You interest on any amount unpaid at the statutory rate set out in accordance with the Late Payment of Commercial Debts Regulations which is currently 8% above the Bank of England’s base rate for business to business transactions, as may vary from time to time. You shall also reimburse Us for all costs and expenses (including legal costs) incurred in collection of the overdue amounts.
5. 9.5 Claims by You in respect of goods alleged to be defective shall not be a valid reason for non-payment of any amounts due from You. You do not have any rights of set-off or withholding of payments due from the You to Us.
6. 9.6 Your failure to pay for any goods in accordance with clause 9.1 shall entitle Us, without prejudice to any other remedy, to at Our option, suspend further deliveries of goods outstanding under the Contract or any other contract between You and Us, or terminate the Contract.

10. Retention of title

1. 10.1 Title to all goods is reserved until all sums due to Us are paid. Risk in the goods passes to You on delivery.
2. 10.2 Goods delivered to which We retain title may be sold as part of a bona fide sale in the ordinary course of Your business, but not as part of the assets on sale of a business.
3. 10.3 Whilst any payment to Us is overdue, We may enter Your premises and collect any property of Ours, stop supplies due under the same or other contracts and retain Your property in Our possession, but in any case the payment shall remain due. We may also deduct any sum due from You from any payment due from Us to You.
4. 10.4 If We reasonably consider any sum due to Us is irrecoverable, We may sell Your property in Our possession in satisfaction.

11. Supply to Your drawings and/or specifications

1. 11.1 Where We are supplying goods as bespoke products to Your specifications and/or drawings initially supplied by You, You warrant that:
   1. (a) You have obtained and maintained all necessary licenses and consents to allow Us to obtain, manufacture or make modifications or amendments to any goods, components, sub-assemblies or instruments including obtaining authority from any relevant third party, and
   2. (b) that the products as requested will conform with all relevant legislation.
2. 11.2 You agree to indemnify Us against all damages, losses, costs, liabilities, and expenses arising as a result of any action or claim by any third party in relation to:
   1. (a) the infringement of Intellectual Property Rights of a third party where the infringement is a result of Us complying with Your specifications, instructions or requirements; or
   2. (b) any claim by a third party which relates to a breach by You of clause 11.1

12. Events outside Our control

1. 12.1 We do not accept any liability for any failure to perform or delay, restriction or hindrance in performance of Our obligations under a Contract in whole or in part where such failure, restriction, hindrance, or delay is caused by a Force Majeure Event.
2. 12.2 A “Force Majeure Event” means any act, event, non-happening, omission or accident beyond Our reasonable control and includes in particular, but is not limited to:
   1. (a) acts of God, flood, earthquake, or other natural disaster; (b) war, armed conflict, insurrection, uprising, civil war, rebellion, martial law, or similar; (c) imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions; (d) breakdown of law and order; (e) breakdown of normal business relations; (f) economic collapse or crisis; (g) strikes, labour disputes; (h) civil commotion, riots; (i) major fire or explosion; (j) nuclear, chemical or biological contamination; (k) epidemic or pandemic; (l) any law or governmental order, rule, regulation or direction; (m) any action taken by a government or public authority, including, but not limited to, a failure to grant a necessary licence or consent or the imposition of an export restriction, import restriction, quota or other restriction or prohibition; (n) significant increases in suppliers cost or cost of raw materials; or (o) significant increases in costs caused by tariff changes or currency devaluation; or (p) worldwide shortage of raw materials required for specific products.
3. 12.3 Following the occurrence of a Force Majeure Event that affects Our Contracts and/or Orders with You, We will contact You giving details of the Event and the goods and projected deliveries affected. This will be followed as soon as possible with a proposal to You, which may involve amended delivery dates, quantities, pricing, and/or specifications. If these amended proposals are not accepted by You within 21 days of receipt, then the part(s) of the Contract and/or Order affected by the Force Majeure Event may be terminated by either party, but the obligations of the Contract will continue unchanged in relation to any other goods not affected by the Force Majeure Event.

13. Export

1. 13.1 If You order goods to be delivered outside the UK, those goods may be subject to local import duties and taxes. These are levied when the goods reach the specified destination. You will be responsible for payment of any such duties and taxes. We do not have any control over these variable charges. You should contact Your local customs office for further information before You place Your order.
2. 13.2 You are responsible for complying with any laws and regulations, anywhere in the world, which are applicable to You or the goods, including obtaining any necessary permit or license required to export these goods from the UK or to import into any other country. We do not give any advice in this regard or accept any liability for a breach by You of any laws and regulations which may apply. You agree to indemnify Us against all liabilities, costs, expenses, damages and losses incurred by Us resulting from a breach by You of this clause (13).

14. Subcontracting

We may subcontract the production of any goods or services at Our discretion without reference to You.

15. Ruling conditions, jurisdiction and law

1. 15.1 These Terms apply to the Contract to the exclusion of any and all other terms that You may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2. 15.2. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
3. 15.3 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation. Notwithstanding the foregoing We shall be entitled to seek enforcement of any judgment of the courts of England and Wales in such jurisdiction(s) We may in Our sole discretion determine.

16. Consumer legislation

We supply optics, optical components and sub-assemblies to businesses and institutions but do not supply to individuals as consumers.

17. Data Protection

We only use Your personal information in accordance with Our Privacy Policy, a copy of which can be found on Our website https://www.comaroptics.com/privacy. Please take time to read this as it includes important terms which apply to You.

18. Third party rights

No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.

19. Assignments and other dealings

1. 19.1 We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of Our rights or obligations under the Contract.
2. 19.2 You may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of Your rights or obligations under the Contract without our prior written consent.

20. Variation

No variation of the Contract, unless provided for in these Conditions, shall be effective unless it is in writing and signed by one of Our Directors or the General Manager.

21. Waiver

No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

22. Severance

If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 22 shall not affect the validity and enforceability of the rest of these Terms.

23. Notices

1. 23.1 A notice given to a party under or in connection with the Contract must be in writing and shall be delivered personally or be sent by a delivery service that provides proof of and date of delivery, or be sent by email, to the party at the address given in these Terms or specified in the Contract documents. The parties may update any postal address or email address by notice, in writing to the other party at any time;
2. 23.2 A notice shall be deemed to have been received:
   1. (i) if delivered personally, when left at the address referred to in clause 23.1 or, as shown on the evidence proved by the delivery service.
   2. (ii) If sent by email, at the time of the email (if during normal business hours on a working day) or at 9.00 am on the next working day, providing that either a ‘read receipt’ is obtained or the other party acknowledges receipt.
3. 23.3 The provisions of this clause 23 shall not apply to the service of any proceedings or other documents in any legal action.

24. Your Insolvency

If You make any voluntary arrangement with Your creditors or become subject to an administration order or (being an individual or firm) become bankrupt (or being a Company) go into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or an encumbrancer takes possession or a receiver is appointed of any of Your property or assets; or You cease or threaten to cease to carry on business; then without prejudice to any other right or remedy available to Us, We shall be entitled to terminate the Contract or suspend any further deliveries under the Contract without any liability to You and if the goods have been delivered but not paid for, or the goods are being held in stock pursuant to a scheduled-delivery order or call-off arrangement, or if goods have been procured by Us or are being manufactured for You against Orders placed, the price of all such goods shall become immediately due and payable notwithstanding any previous agreement to the contrary.

25. General

In this agreement:

1. 25.1 Words in the singular include the plural and vice versa.
2. 25.2 Headings are included for convenience only and shall have no effect on the interpretation of this agreement.
3. 25.3 Any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
4. 25.4 Subject to any future variations and/or amendments to the Contract by Us, these Terms supersede and extinguish all previous versions and issues. You acknowledge that You have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
5. 25.5 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
6. 25.6 On termination of the Contract for any reason You shall immediately pay to Us
   1. (i) all of Our outstanding unpaid invoices and interest;
   2. (ii) the contract price of all goods that We have in stock for You held on a call-off or scheduled-order basis;
   3. (iii) the contract price of any other goods that You have ordered under the Contract that We have already manufactured or procured for You but not yet delivered and/or invoiced.

ISSUE 13a © Comar Optics Ltd 11.19