1. DEFINITIONS

(a) “Seller” means VideoRay LLC.
(b) “Buyer” means the legal entity purchasing Goods from Seller.
(c) “Goods” means the products offered by Seller and/or purchased by Buyer.
(d) “Offer” means any quote, proposal, or offer to sell Goods provided by Seller to Buyer.
(e) “Order” means any purchase order or similar instrument issued by Buyer to Seller to purchase Goods.
(f) “Parties” means both the Seller and Buyer, collectively.

2. ACCEPTANCE Buyer’s Order shall be binding upon the Parties upon the earlier of Seller (i) executing and returning an Order acknowledgement to Buyer, (ii) commencing performance pursuant to Buyer’s Order, or (iii) delivering to Buyer any of the Goods and/or Services under Buyer’s Order.

3. PRECEDENCE These Terms and Conditions of Sale shall exclusively govern the sale of Goods by Seller. Any terms or conditions proposed by Buyer in any purchase order, acknowledgment, or other document (whether issued before or after this document) that conflict with, deviate from, or add to these Terms and Conditions are hereby expressly rejected and shall be of no force or effect. Buyer’s acceptance of delivery of any Goods shall constitute acceptance of these Terms and Conditions, regardless of whether Buyer has provided conflicting or additional terms. Seller’s failure to object to any such terms shall not be construed as a waiver or acceptance thereof. Seller’s acceptance of Buyer’s Order, and any changes or amendments thereto, are subject to Buyer’s assent to these Terms and Conditions, unless agreed otherwise in writing by a duly authorized representative of Seller.

4. PRICES Except as otherwise agreed in writing by Seller, the prices offered apply only to those specific quantities, specifications, and delivery schedules set forth in Seller’s Offer. Seller may impose a price and/or delivery schedule adjustment for any variation in quantity, specifications, or delivery schedules.

5. CREDIT APPROVAL AND PAYMENT Standard payment terms are set forth in Seller’s quotation and/or invoice. Any payment terms are subject to credit approval of Buyer by Seller. Payment terms for international orders may be cash in advance by wire transfer or other mutually agreed arrangement. Credit terms, shipments, and performance of work are subject to Buyer’s approval of Seller’s Credit Department. Each shipment is a separate and independent transaction and Buyer shall make payment accordingly. If, prior to shipment of Buyer’s Order, Buyer fails to fulfill the terms of payment of any prior invoice submitted by Seller or, if in the opinion of Seller, Buyer’s financial condition becomes impaired or unsatisfactory, Seller may change, without notice, the terms of payment and/or delay or discontinue further shipments, until Buyer has resolved all past due obligations and Seller has received acceptable assurance regarding Buyer’s prompt payment of future obligations. All amounts due to Seller but not paid by Buyer on the due date shall bear interest payable by Buyer to Seller at a rate of one and one half percent (1.5%) per month.

6. TAXES Buyer must pay all present or future sales, use, excise, import duty, or other tax applicable to the manufacture, sale, or lease of Goods included in an invoice, unless the Buyer provides Seller with a tax exemption certificate acceptable to the applicable taxing authority or other arrangements have been made in writing.

7. SHIPPING TERMS AND RISK OF LOSS For all domestic orders, shipment shall be made under Free on Board (FOB), Pottstown, PA, in accordance with Incoterms® 2020. For all international orders, shipment shall be made under Ex Works (EXW), Pottstown, PA, in accordance with Incoterms® 2020. All risk of loss and costs associated with shipping shall be allocated in accordance with the applicable Incoterm.

8. PACKING AND PACKAGING If specified in Buyer’s Order, Seller shall comply with all special packaging and marking requirements; otherwise, Seller shall package and mark all Goods in accordance with best commercial practices to protect Goods against ordinary damage and deterioration during transit. Seller’s packing list shall include, at a minimum, Buyer’s Order number, line item number(s), part number(s), description(s), and quantity shipped.

9. DELIVERY SCHEDULES Shipping dates are approximate. Buyer shall provide to the Seller all necessary Buyer furnished information and material prior to shipping, if applicable. Seller shall not be liable for any damages or losses arising from or related to late deliveries.

10. EXCUSABLE DELAY Seller shall not be liable for any failure or delay in performing its obligations hereunder as a result of (1) causes or factors beyond its reasonable control; (2) acts of God or the public enemy, acts of any government agency or authority, fire, floods, unusually severe weather, epidemics, quarantine restrictions, war, riot, strike, labor disturbance, freight embargo, public disorder, delays in  transportation,  or  car shortages; (3) inability to obtain necessary labor, materials, components, or manufacturing facilities; (4) subcontractor or supplier delays which are beyond the control of the subcontractor or supplier; or (5) acts of Buyer, its employees, contractors, or agents. For delays resulting from such causes, performance will be correspondingly extended.

11. CANCELLATION Buyer may request cancellation or termination of Buyer’s Order, in whole or in part, by providing written notice to Seller prior to shipment or, in the case of special Orders, prior to the start of manufacture. Seller shall cooperate with Buyer in attempting to affect such cancellation or termination conditioned upon Buyer paying Seller for all Goods delivered and/or Services performed, and for all work in process, including all applicable direct and indirect costs, normal profit on such costs, settlements with suppliers, and related termination expenses. In the event of cancellation or termination of an Order after shipment, or in the case of special Orders, after the start of manufacture, Buyer shall pay Seller all of the following fees that apply:

• A 20% restocking fee for Seller’s standard components;
• A 50% restocking fee for third-party manufactured parts or modules;
• A 100% restocking fee for non-returnable third-party manufactured parts or modules;
• A $3,000.00 assembly fee if production was started prior to cancellation; and
• A fee equal to 125% of completed work for custom engineered work.

12. TERMINATION FOR DEFAULT Either Party may terminate the Order in the event of a material breach of this Agreement or of the Order by the other party. If a Party (the “Defaulting Party”) is in breach of a material provision of this Agreement or the Order, the other Party (the “Non-Defaulting Party”) will submit a written cure notice to the Defaulting Party advising of such breach. Such notice will identify: (a) the provision of the Agreement at issue; (b) the conduct constituting the breach; and (c) the actions requested to cure such breach. The Defaulting Party will then have fifteen (15) calendar days to cure the breach. If the Defaulting Party does not cure the breach within the fifteen (15) calendar day period, the Non-Defaulting Party may terminate the Order. Further, as to any Order of Goods shipped prior to payment in full, and regardless of whether Buyer has granted Seller a security interest in the Goods, Buyer hereby authorized Seller’s agent to enter any place of business where the Goods may be found and take repossession of said Goods.

13. CHANGE ORDERS AND AMENDMENTS The Buyer shall submit all change order requests to the Seller in writing and will not be effective unless and until Seller agrees to such change(s) in writing. Seller will advise Buyer in writing of the price and/or delivery schedule impact, if any, of the change request. Seller’s acceptance of changes will be subject to Buyer’s agreement to any price and/or delivery schedule adjustments.

14. LIMITED WARRANTY Seller warrants that the Goods manufactured by Seller will be free from defects in material and workmanship for a period of twenty-four (24) months from the date of purchase, provided that Buyer has operated such Goods in accordance with the instructions and safety measures which have been outlined by the Seller in the corresponding user guide/web site for each individual product. For additional information regarding product warranty, visit www.videoray.com. EXCEPT AS OTHERWISE SPECIFICALLY STATED IN WRITING IN SELLER’S OFFER OR IN ITS ACCEPTANCE OF BUYER’S ORDER, SELLER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY IMPLIED WARRANTY OF FITNESS OF THE GOODS FOR ANY PARTICULAR PURPOSE.

15. RETURN AUTHORIZATIONS Buyer will promptly notify Seller of any nonconformity(ies) in the Goods and afford Seller a reasonable opportunity to inspect the Goods. No Goods may be returned without Seller’s prior authorization, as evidenced by a return merchandise authorization (RMA). Once a return authorization number is obtained, Buyer will return the non-conforming Goods. Buyer is responsible to package Goods in a safe manner as to avoid any damages from shipping. The return authorization number must appear on the shipping label along with all paperwork associated with the return. Granting a return authorization number does not necessarily mean that a credit will be approved or that the evaluation or repair will take place without a fee.

16. INTELLECTUAL PROPERTY AND REVERSE ENGINEERING Buyer acknowledges and agrees that Seller’s Products are based upon and embody various confidential and/or proprietary technology, patents, copyrights, information, know-how, trade secrets, and other intellectual property of Seller and its suppliers and licensors. Seller and its suppliers or licensors (as applicable) shall exclusively own all inventions, information, technical data or drawings, copyrights, patents, trademarks, technology, processes, methods, know-how, trade secrets, and other proprietary information of any kind used or embodied in the Products and any documentation, drawings, designs, specifications, software, and other items furnished by Seller, all intellectual property rights with respect thereto, and all reproductions or derivatives thereof in any form (“Intellectual Property”) shall remain with the Seller. Buyer shall neither acquire nor claim any right, title, or interest in, and shall exercise reasonable care to maintain the confidentiality of Seller’s Intellectual Property, and shall use the same solely as required for its authorized use of the Products supplied hereunder. Buyer may not directly or indirectly:

• Copy, adapt, develop, reverse engineer, recast, compile, decompile, translate, or create derivative works from any Products or items provided by Seller, or permit any third party to do so;
• Remove, alter, or obscure any copyright, trademark, patent, logo, government restricted rights, or other notices or legends from items provided by Seller; or
• Disclose or use Seller’s Intellectual Property for commercial purposes or in a manner detrimental to Seller.

Disclosures of Seller’s Intellectual Property may be made only to Buyer’s personnel having a specific need to know and a written obligation to protect such information no less restrictive than the restrictions herein, and Buyer will be responsible for any breach by its personnel. Any breach of this Section will cause irreparable harm for which recovery of damages would be inadequate, and Seller may seek immediate injunctive or other equitable relief to prevent any violation, threatened or actual, of this Section, in addition to any other remedies, and without proof of actual damage. Buyer acknowledges and agrees that Seller solely and exclusively owns and has all right, title and interest in and to all Intellectual Property, as well as all technical data, software, both object and source code, trade secrets, mask works, processes, ideas, know-how, documentation, concepts, inventions, improvements, discoveries and any other tangible or intangible property developed or prepared by Seller pursuant to, or in anticipation of, a Buyer purchase order and all related copyrights, patents, trade secret rights, mask work rights and other intellectual property rights. Without limiting the generality of the foregoing, Seller owns all records papers, reports, descriptive and pictorial material, printed or written technical information, drawings, reproductions thereof, samples, models, and tools supplied or produced by Seller during performance of the work under these Terms. Buyer shall not disclose the nature and contents of any such information to others without written permission from Seller and all disclosures made by Buyer shall be surrendered by Buyer to Seller upon completion of the related portions of such work, as may be requested.

17. INDEMNIFICATION Buyer shall defend, indemnify, and hold harmless Seller, its parents, subsidiaries and affiliates, and their respective directors, officers and employees and representatives, from and against any and all claims, suits, losses, obligations, causes of action, damages, and expenses (including attorney’s fees) relating to or arising out of any use of the Products by Buyer, its customers, or any third parties to whom Buyer transfers the Products or otherwise makes them available.

18. LIMITATION OF LIABILITY Seller shall have no liability for any loss, claim or liability (including without limitation any claim of infringement) to the extent such claim arises in any way out of:

• Products manufactured or modified based on Buyer’s designs or specifications;
• Misuse, misapplication, improper or faulty installation, or use of Products in any manner or for any purpose other than as specified by Seller;
• Modification, repair, or disassembly of Products other than by or as authorized by Seller; or
• Use of Products in combination or conjunction with, physically installed on, or as a component of non-Seller equipment, software, services, accessories, attachments, interfaces, or consumables, unless supplied or approved by Seller.

Buyer must make any claim against Seller, regardless of form, arising out of the Products or transactions to which these Terms apply, within thirty (30) calendar days after the cause of action arises or performance hereunder is completed or terminated, whichever first occurs.

IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT LOSSES, COSTS, OR DAMAGES, HOWEVER CAUSED, WHETHER OR NOT FORESEEABLE, AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR UNUSUABLE, OR LOSSES SUSTAINED BY BUYER OR ANY THIRD PARTY FOR A FAILURE OF THE PRODUCTS TO OPERATE WITH ANY OTHER PRODUCTS OR SOFTWARE PROGRAMS). SELLER’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE FOR ANY AND ALL CAUSES SHALL BE LIMITED TO THE PURCHASE PRICE PAID OR PAYABLE FOR THE APPLICABLE PURCHASE ORDER. THESE LIMITATIONS WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT, TORT, STRICT LIABILITY, INDEMNIFICATION, OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FOR EUROPEAN CUSTOMERS, THE FOREGOING SHALL BE MODIFIED SOLELY AS REQUIRED UNDER THE PRODUCT LIABILITY ACT, IT BEING AGREED THAT CLAIMS OVER AND ABOVE THOSE UNDER THE PRODUCT LIABILITY ACT WILL NOT BE MADE BY BUYER AGAINST SELLER, AS MANUFACTURER, UNDER ANY THEORY OF LIABILITY, INCLUDING BY MEANS OF INDEMNIFICATION OBLIGATIONS.

Buyer acknowledges and agrees that these limitations of liability are a material part of the bargain between the Parties and are reflected in Product pricing, which would be higher without these limitations.

19. ARBITRATION AND LAW Any disputes, controversies or differences arising between the parties by virtue of this agreement, which are not resolved amicably, will be finally resolved through arbitration. The arbitration shall be conducted in English and comply with the Commercial Rules of the American Arbitration Association. The arbitration, including the rendering of the decision, shall take place in Montgomery County, Pennsylvania.

20. ASSIGNMENT Buyer shall not assign or otherwise transfer this Agreement or any of its rights and obligations hereunder to any third person without the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned, or delayed. Assignment is deemed to have occurred upon the earliest announcement or consummation of any of the following: a merger, consolidation, sale or acquisition of Buyer or any division or component of Buyer, which is to perform the work; the sale of all or substantially all the assets of Buyer; or the acquisition of a controlling interest in the stock of a Buyer. For the purpose of this Agreement, a corporate name change does not constitute an assignment.

21. UNENFORCEABLE PROVISIONS Should any part of this Agreement be held to be unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the remaining provisions of this Agreement shall be fully effective, operative and enforceable.

22. SOFTWARE AND FIRMWARE Any software provided by VideoRay, including without limitation internal system code, firmware, and/or operating system software (“Software”) is licensed, and is provided upon the terms and subject to the conditions set forth in the applicable license agreement, the terms of which will prevail over any contrary terms and conditions herein. To the full extent allowed under applicable law, Buyer will be deemed to have agreed to the terms of any applicable licenses by opening the media envelope or by installing or using the Software or the Product in which it is installed. VideoRay or its suppliers or licensors own all such Software and, unless otherwise provided in the applicable license agreement, VideoRay grants Buyer, only for so long as Buyer owns or uses the Product as authorized, a limited, personal, non-exclusive, non-transferable, license to use such Software only in machine readable form and only as part of the normal operation and maintenance of the Product with which it is provided. All rights in and to such Software that are not expressly granted to Buyer are expressly reserved.

• Unless otherwise provided in the applicable license agreement, Buyer shall not copy or duplicate the Software, in whole or in part (other than one back-up copy, bearing all original copyright notices, for archival purposes) or transfer, sublicense, distribute, sell, lease, rent, or otherwise provide or disclose any such Software, or any portion thereof, to any third-party, including without limitation any use over the internet or through an application service provider model. Buyer shall not circumvent any usage or other restrictions imposed by any license manager, or modify, adapt, copy, recast, alter, compile, decompile, translate, or create derivative works based on such Software, or use the same for application development purposes.
• For Software installed or embedded in a Product, Buyer’s license will terminate when Buyer discontinues use of the Product with which such Software is provided.
• If VideoRay provides or makes available to Buyer any third-party Software as or in connection with any Product, VideoRay provides such third-party Software to Buyer subject to the third-party’s copyright and end user license, the terms and conditions of which are set forth in the applicable license agreement. VideoRay shall transfer to Buyer only those rights, warranty terms, remedies and obligations granted by the third party. To the maximum extent allowed under applicable law, VideoRay makes no other representations or warranties regarding, and have no liability to Buyer related to or arising out of, such third-party Software.
• If Greensea software is used, buyer agrees to Greensea license terms located at videoray.com/gs-license/

23. UNITED STATES AS END USER If the Products sold hereunder are pursuant to a contract or subcontract issued by an agency or department of the United States government, Buyer shall notify Seller in advance of submitting an Order. If such modifications cause an increase in cost to Seller of delivering the Products, Seller may requote the Products based on the increased cost and Buyer shall either accept the increased price and or decline to place the Order. Seller agrees that the Terms (other the those with respect to price and payment) shall be deemed modified to the extent reasonably necessary for Buyer to comply with mandatory statutory procurement requirements imposed on Buyer by virtue of the fact that the Products procured hereunder are intended to be acquired, used, or consumed by an agency or a department of the United States; provided, however, that these Terms shall not be deemed so modified unless and until Buyer notifies Seller of such intent and identifies with specificity the modifications Buyer deems necessary for compliance.

24. NOTICES Any notices, authorizations or other communications required or permitted to be given or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) and sent by hand, by certified or registered mail (with return receipt requested), by overnight courier or electronic mail to the addresses below. If delivered by hand or overnight courier, a notice or communication shall be deemed effective on the date of delivery. If delivered by certified or registered mail (return receipt requested), a notice or communication will be deemed effective three (3) days after mailing. If sent by electronic mail transmission, a notice or communication will be deemed effective upon confirmation of receipt or after one business day.

25. RETENTION OF RECORDS Buyer shall retain all records related to this Agreement for any period required by law or regulation. Records related to this Agreement include, but are not limited to, financial, proposal, procurement, specifications, production, inspection, test, quality, shipping and export, and certification records. At no additional cost, Buyer shall timely provide access to such records to Seller upon written request.

26. INTERPRETATION The headings in this Agreement are inserted for convenience only and shall not be used in the interpretation hereof.

27. FCPA Buyer Represents and warrants that Buyer and any person acting on behalf of Seller:

(a) have not made, and during the term of this Agreement will not make, offer or promise to pay, lend, or give money or anything of value;
(b) have not authorized and during the term of this Agreement will not authorize any such offer, promise, payment, loan, or gift;
(c) have not taken and during the term of this Agreement will not take, any action in furtherance of an offer or promise to pay, lend, or give money or anything of value, directly or indirectly, to or for the use or benefit of any individual whether in the public or private sector or to a government official, or to any other person while knowing that all or a portion of such money or thing of value will be offered, given, paid, loaned, or promised, directly or indirectly, to or for the use or benefit of such individual or government official, for any of the following purposes:

(i) influencing any act or decision of such Official, in his or its official capacity;
(ii) inducing such Official to do or omit to do any act in violation of the lawful duty of such Official;
(ii) inducing such Official to use his or its influence with any governmental entity, public international organization, or political party to affect or influence any act or decision of such entity, public international organization or political party; or
(iv) securing any improper advantage to either assist the Buyer or any subsidiary or affiliate thereof or further the interests of the business.

For purposes of this Section, an “Official” is any government or party official, candidate or employee, at any level, including

• any officer or employee of any government or any department, agency, or instrumentality thereof;
• any officer or employee of a company or organization controlled or owned, in whole or in part, by any government or any department, agency, or instrumentality thereof;
• any officer or employee of any public international organization;
• any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or any company or other organization owned by such government or department, agency, or instrumentality, or any such public international organization;
• any political party or official thereof or any candidate for political office (collectively “Government Officials”).

Buyer may not make any payments under this Agreement to unlawfully influence any act or decision of an official, party or candidate in his, her or its official capacity, or to improperly induce such official, party or candidate to his, hers or its influence with a government to affect or influence any act or decision of such government to assist the Buyer and its related companies in obtaining, retaining, or directing business to the Buyer and its related companies or to any person or other corporate entity.

28. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without regards to its conflicts of law principles. Exclusive jurisdiction for any litigation arising out of this Agreement or its subject matter shall be in the federal or state courts residing in Arlington County in the Commonwealth of Virginia. In any such proceeding, the Parties waive any objection to forum including, without limitation, any objection based on lack of personal jurisdiction, improper venue, or inconvenient forum. The Parties specifically disclaim application to this Agreement of the United Nations Convention on Contracts for The International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, and any international discovery and service of process conventions.

29. ORDER OF PRECEDENCE In the event of an inconsistency or conflict between the provisions of these Terms and any other document incorporated by reference herein, the inconsistency or conflict shall be resolved by giving precedence in the following order:

1. Previously negotiated and executed contractually documented terms and conditions.
2. VideoRay General Terms and Conditions (this document)
3. VideoRay Quote & Attachments
4. VideoRay Sales Order Acknowledgement

30. OBSOLESCENCE VideoRay may discontinue or change the design or specifications of any Product or component at any time and will use commercially reasonable efforts to notify Buyer of any decision to discontinue Products or any material change in specifications affecting form, fit or function.