Terms and Conditions

These terms and conditions stated below constitute a part of the Purchase Order and/or Order Acknowledgement and any contract or sale resulting from it (collectively, this “Agreement”). Unless otherwise stated in writing, the following terms and conditions apply to any contract or sale between Buyer and Seller. No modifications or additions to these terms and conditions, and no terms and conditions inconsistent with those stated herein, that are contained in any document submitted to Seller, shall be binding on Seller unless accepted in writing by an authorized representative of Seller. The term “Seller” means Alcon Industries, Inc. The term “Buyer” means the buyer of the goods, equipment, products, supplies, parts and other items furnished under this Agreement. The term “Goods” means the goods, equipment, products, supplies, parts and other items furnished under this Agreement.

Seller shall be deemed to have accepted the Buyer’s purchase order when: (a) Seller executes and returns the Order Acknowledgment; (b) Seller evidences (in any manner) its acceptance of Buyer’s Purchase Order; or (c) Seller delivers to Buyer the Goods. Any additional and/or different terms proposed by Buyer or contained in Buyer’s standard purchase terms and/or standard terms and conditions are hereby deemed to be material alterations to these Terms and Conditions. Such terms will not be binding on Seller or create any obligation of Seller unless Seller agrees to such terms in writing.

Unless otherwise agreed by Buyer and Seller in writing, delivery charges, including insurance costs against loss or damage in transit are the responsibility of the Buyer and shall be added to Seller’s invoice. Seller shall retain legal and equitable title to the goods and title will pass to Buyer only when the purchase order, taxes, shipping and all other related charges are paid in full to Seller. Buyer agrees to complete and execute all documents required for Seller to perfect its legal and equitable title rights in the goods and allow Seller to repossess the goods in the event the Buyer fails to pay all outstanding amounts upon written demand from Seller. Under no circumstances will Seller be liable for any damages, penalties, costs, or offsets arising from or in connection with the failure to deliver or late delivery of any order including, without limitation, indirect, incidental, consequential, special, or exemplary damages.

Seller shall be excused from its delivery obligations and not be liable to the Buyer for failure to sell or supply, for any delay in selling or supplying any of the goods, in the event of or due to acts of God, fire, explosion, flood, war, terrorism, riots, warlike conditions, hostilities, sabotage, civil unrest, labor disputes, epidemic, pandemic, shortage or failure of supply of raw materials or equipment, shortage or failure of power, interruption, shortage, failure or delay of supply of communications or transportation, governmental actions, orders, laws, and regulations, or any other similar circumstances or events that are beyond Seller’s reasonable control or would constitute unforeseen supervening circumstance not within the contemplation of the parties at the time of this Agreement.

Unless otherwise agreed by Buyer and Seller in writing, Seller’s shipment of Goods will be F.O.B, place of origin.

Unless otherwise stated, all quoted shipment dates indicate anticipated date of shipment from Seller’s location, and are approximate and subject to change. Seller shall not be liable for delays in shipment caused by events beyond its control. Seller shall not be liable for any direct or indirect loss or damage resulting from a delay in shipment.

Seller will not be responsible or liable for any shortages in shipments unless notified in writing by Buyer of such shortage within ten days from receipt of shipment.

Unless otherwise agreed by Buyer in writing or otherwise stated in this Agreement, invoices shall be paid within thirty (30) days after the invoice date or after the Goods are delivered, whichever is later. If an invoice contains a discount provision, the discount period shall commence on the delivery date of the Goods or the invoice date, whichever is later.

Seller has no obligation to pay any tax (including without limitation VAT taxes), duty, or other surcharge applicable to the sale of goods covered by the Agreement. Such charges are the exclusive responsibility of and shall be paid by the Buyer.

Seller may bill a monthly surcharge to cover cost increases for Non-Value Added Items. “Non-Value Added Items” are shown in Exhibit 1 to the Purchase Order and/or Order Acknowledgement. These costs shall be reviewed by Seller and adjusted not more often than once per month if the aggregate cost of the Non-Value Added Items increases at least 5% from the base values set forth in Exhibit 1.

Seller warrants that the Goods it supplied have been manufactured in accordance with its standard manufacturing practices. Seller further warrants that the Goods it supplied are fit for the ordinary purpose or purposes for which such Goods are manufactured, under normal and proper usage and installed in accordance with Seller’s recommended installation procedures. EXCEPT AS STATED HEREIN, SELLER MAKES NO EXPRESS WARRANTY WITH RESPECT TO GOODS SUPPLIED BY IT, AND SELLER EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER MAKES NO EXPRESS WARRANTY WITH RESPECT TO ANY GOODS OR MATERIALS NOT MANUFACTURED BY SELLER THAT ARE INCORPORATED INTO SELLER’S PRODUCTS, ANY GOODS OR MATERIALS SUGGESTED BY SELLER AS ACCEPTABLE TO BE USED WITH SELLER’S PRODUCTS, OR ANY GOODS OR MATERIALS THAT ARE SOLD IN CONNECTION WITH SELLER’S PRODUCTS. NOR DOES SELLER WARRANT THAT SUCH GOODS OR MATERIALS ARE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE.

Seller does not warrant and is not responsible for the use of the goods in conjunction with parts or components not manufactured or supplied by Seller or in a manner inconsistent with Seller’s recommended instructions and procedures.

As Buyer’s sole remedy for any defects in workmanship or material, Seller agrees, at its sole option, to credit, repair, or replace any goods supplied by it which are found to be defective in workmanship or material, provided Seller receives written notice from Buyer of the alleged defect within thirty (30) days from the date of shipment. Any claim of defect not made within this period shall be conclusively deemed waived by Buyer. Seller’s obligations under this paragraph shall not extend to goods or materials supplied by anyone other than Seller, and shall not extend to defects caused by improper use, installation, application or other handling of the goods by Buyer or a third party. Credit, repair or replacement will be preconditioned upon examination of the goods by Seller and, if requested by Seller, return of the goods to Seller at Seller’s direction and expense. No goods are to be returned to Seller without Seller’s prior written consent. Seller shall not be liable for any expense incurred or undertaken by Buyer not authorized by Seller in writing.

SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR EXPENSES ARISING DIRECTLY OR INDIRECTLY FROM ANY DEFECT IN ITS GOODS OR FROM THE USE OF ANY SUCH GOODS. THE REMEDIES SET FORTH HEREIN SHALL CONSTITUTE THE EXCLUSIVE REMEDIES AVAILABLE TO BUYER AND ARE IN LIEU OF ALL OTHER REMEDIES.

Seller may cancel any order or contract at any time without penalty if Buyer fails to perform any of its obligations under the order or contract. If Buyer cancels any contract for the sale of goods, it shall be liable to Seller for: (a) all work completed with respect to such goods prior to cancellation, at the appropriate unit price; (b) all work in process with respect to such goods prior to cancellation on the basis of the percentage of completion thereof, at the appropriate unit price; (c) all raw materials used by Seller with respect to such goods prior to cancellation; (d) all unamortized tooling used by Seller with respect to such goods prior to cancellation; and (e) all engineering and other cancellation charges incurred by Seller with respect to such goods prior to cancellation on the basis of cost to the Seller, plus handling and overhead charges.

Neither Buyer nor Seller shall have the right to assign any of its rights, duties or obligations hereunder.

Without regard to any conflict of laws principles, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio, including its statutes of limitations. The exclusive jurisdiction and venue for any lawsuit, legal action or other proceeding or dispute arising from the sale of goods or contract between the parties resulting from this transaction shall be the state or federal courts located in Cuyahoga County, Ohio.

Seller agrees to maintain in full force and effect casualty, property, and other lines of insurance of the types, on the terms and in the amounts commensurate with its business and risks associated therewith, and to comply with applicable workers compensation insurance laws regarding insurance or qualification as a self-insurer.

Buyer reserves the right to make reasonable written changes in any one or more of the following: (a) specifications, drawings, blueprints and data pertaining to this Agreement where the Goods to be furnished are to be specially manufactured for Buyer; (b) methods of shipment or packing; (c) place of delivery; (d) time of delivery; (e) manner of delivery; and/or (f) quantities. If any such change causes an increase in the cost of or the time required for the performance of this Agreement, then such cost shall be the sole responsibility of Buyer. No such change shall be deemed accepted by Seller unless and until Seller provides written acceptance of such change to Buyer.

Buyer agrees that all information and materials (collectively “Information”) disclosed to Buyer by Seller (whether such Information is owned by Seller or any other entity with whom Seller does business) will be held by Buyer in confidence. Such Information includes, but is not limited to, information, data or knowledge regarding product plans, product designs, product costs, product prices, finances, marketing plans, business opportunities, personnel, research and development activities, know-how, pre-release products, techniques, methods and any other information, as well as any and all observations, oral disclosures, visual disclosures, electronic disclosures and any other information (in whatever form) that may be perceived, reproduced, transmitted or communicated in any way, whether or not patentable or copyrightable. Buyer will not disclose the Information to others and will not use the Information for any purpose other than for the direct benefit of Seller. All Information delivered or disclosed in connection with this Agreement (including all descriptions and modifications thereof) is and remains the property of Seller. The furnishing of Information shall be not construed as granting either expressly or otherwise a license under any invention or patent now or hereafter owned or controlled by Seller. Buyer shall not reverse engineer, disassemble or decompute any prototype, software or any other tangible property containing or embodying any Information of Seller.

Seller asserts all its trademarks, trade names, trade dress, patents, designs, utility models, industrial designs, drawings, copyrights, sounds, internal manufacturing procedures, product specifications, and all other intellectual property (collectively “Intellectual Property”) it owns at the time the Buyer purchases the goods. Unless otherwise agreed in writing by Seller, all right, title, and interest in and to inventions, developments, improvements, or modifications of any good made by Seller as a result of Buyer’s purchase shall remain exclusively with Seller. Buyer’s purchase of the goods does not grant to it a license or other rights in Seller’s Intellectual Property rights. In the event a third-party claims any goods sold to the Buyer infringes any intellectual property rights, Buyer shall (a) promptly notify Seller, in writing, of the claim; and (b) upon request, grant Seller the sole authority to investigate and control the defense of the claim. Whether Seller defends such a claim brought against the Buyer is within Seller’s sole discretion. Seller has no obligation to defend any such claim. Unless otherwise agreed in writing, the terms of this provision set forth the entire obligation and liability of Seller to Buyer for claims of infringement by any goods sold or supplied to Buyer by Seller.

This Agreement constitutes the entire agreement between Buyer and Seller regarding the subject matter herein and supersedes all prior and contemporaneous oral or written discussions, arrangements and agreements regarding the subject matter hereof. No course of dealings between the Parties, no waiver by either Party, and no refusal or neglect of either Party to exercise any right hereunder or to enforce compliance with the terms of this Agreement shall constitute a waiver of any provision herein with respect to any subsequent breach, actions or omissions here under, unless such waiver is expressed in writing and signed by the waiving Party. If any term or condition of this Agreement is invalid, illegal or unenforceable, the remaining terms and conditions of this Agreement shall remain in effect. No additions to or modifications of the terms and conditions of this Agreement shall be binding upon Buyer except upon the written consent of Buyer. This Agreement shall be binding upon both Buyer and Seller and each of Buyer’s and Seller’s employees, subcontractors, agents, representatives, successors and assigns and shall inure to the benefit of Buyer and Seller and their respective successors and assigns.