Terms and Conditions
1. DEFINITIONS
In these Conditions the following expressions shall have the following meanings: “Agreement” means these Conditions and the accompanying written quotation of INTENSE which is accepted by the Customer,
and/or any written order acknowledgement from INTENSE accepted by the Customer. “INTENSE” means Intense Inc., with a business address of 45 Horsehill Road, Suite 107B Cedar Knolls, NJ 06437.
“Customer” means the person or entity who or which accepts a quotation or order acknowledgement of INTENSE for the sale of
Product. “Vendor” means the person or entity who or which accepts a quotation or order acknowledgement of INTENSE for the purchase
of Product. “Product” means finished package semiconductor laser devices, raw materials, and or engineering services required
to produce same to be sold and supplied by INTENSE to the Customer or by the Vendor. “Conditions” means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and INTENSE detailed in any INTENSE
quotation, proposal or written correspondence.
2. CONDITIONS OF SALE
2.1 INTENSE shall sell and the Customer shall purchase the Product in accordance with the Agreement which shall supersede
all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications,
both written and oral, between INTENSE and Customer, and shall prevail over any terms or conditions contained in any other
documentation issued by Customer. All work carried out by INTENSE or Product supplied by INTENSE to the Customer shall be
deemed to be carried or supplied under the Agreement.
2.2 For product manufactured by INTENSE, INTENSE shall have the right to access test data, pertaining to the product, from the Customer for the sole purpose of improving and/or optimizing manufacturing processes.
2.3 The Customer shall be responsible for ensuring the accuracy of the terms of any order including any applicable specification submitted by the Customer and for giving INTENSE any necessary information relating to the Product within a sufficient time to enable INTENSE to perform the Agreement in accordance with its terms.
3. LIMITED WARRANTY
3.1 INTENSE warrants to Customer that for a period of [12] months from the date of shipment of the Products (“Warranty Period”), that such Products will materially conform to the quantity, quality and description of and any specification for the Product set out in INTENSE’s quotation (if accepted by the Customer) or order acknowledgement or the Customer’s order (if accepted by INTENSE), and will be free from material defects in material and workmanship (collectively, the “Limited Warranty”).
3.2 EXCEPT FOR THE LIMITED WARRANTY, INTENSE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF
PERFORMANCE, USAGE OF TRADE OROTHERWISE.
3.3 Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated
into, attached to or packaged together with, the Products. Third Party Products are not covered by the Limited Warranty. For
the avoidance of doubt, INTENSE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY
PRODUCT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OF TITLE OR AGAINST
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF
DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. INTENSE DOES NOT SUPPLEMENT OR ENHANCE THE
WARRANTY PROVIDED BY ANY THIRD PARTY.
3.4 INTENSE shall not be liable for a breach of the Limited Warranty if: (i) the defect arises because Customer failed to follow
INTENSE’S oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (ii) Customer alters or repairs Products without the prior written consent of INTENSE; or (iii) Customer’s use of the Products in conjunction with the products and/or services of parties other than INTENSE where such combined use gave rise to the claim.
3.5 With respect to any Products that do not conform to the Limited Warranty during the Warranty Period, INTENSE shall, in
its sole discretion, either: (i) repair or replace such Products (or the defective part); or (ii) credit or refund the price of such {00631150 – 1} Products at the pro rata contract rate provided that, if INTENSE so requests, Customer shall, at Customer’s expense, return such Products to INTENSE.
3.6 THE REMEDIES SET FORTH IN 3.5 SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND INTENSE’S ENTIRE
LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.
4. LIABILITY & INDEMNIFICATION
4.1 IN NO EVENT SHALL INTENSE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT,
LOST BUSINESS, OR OTHER ECONOMIC LOSS, EVEN IF THE OTHER PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF OR COULD
HAVE FORSEEN SUCH DAMAGES OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE
DAMAGES WHETHER ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT
INTENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MULTIPLE CLAIMS SHALL BE TREATED AS A SINGLE CLAIM
IF RELATED TO A COMMON EVENT GIVING RISE TO LIABILITY.
4.2 IN NO EVENT SHALL INTENSE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE SALE OF
ANY PRODUCT TO CUSTOMER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, EXCEED THE REMEDIES SET FORTH IN SECTION 3.5.
4.3 The Customer shall indemnify, defend and hold harmless INTENSE against all damage or injury to any person or entity and against all proceedings, charges and expenses for which the INTENSE may become liable in respect of the Products supplied under the Agreement, except to the extent INTENSE has assumed liability therefor under the Agreement or such liability is a direct result of the negligence of INTENSE and can be attributed to no other cause (in whole or part).
4.4 Where the Product is manufactured or any process is applied to the Product by INTENSE in accordance with a specification submitted by the Customer, the Customer shall indemnify INTENSE against all loss, damages, costs and expenses awarded against or incurred by INTENSE in connection with or paid or agreed to be paid by INTENSE in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrialor intellectual property rights of any other person which results from INTENSE’s use of the Customer’s specification.
4.5 No order which has been accepted by INTENSE may be cancelled by the Customer except with the agreement in writing of
INTENSE and on terms that the Customer shall indemnify INTENSE in full against all loss (including loss of profit), costs (including
the cost of all labor and materials used), damages, charges and expenses incurred by INTENSE as a result of cancellation.
5. PRICE AND PAYMENT
5.1 The price of the Product and all other costs and charges in respect thereof shall be INTENSE’s quoted price and shall be payable by the Customer to INTENSE on issue of proforma invoice prior to release of Product. Payment shall be made by credit transfer to INTENSE’s bank account or other such means as may be agreed. All prices quoted are valid for 30 days only or such period as is stipulated in INTENSE’s quotation to the customer. The price does not include any applicable federal, state or local taxes, all of which shall be paid by Customer. Customer may be invoiced for applicable taxes unless Customer furnishes a valid resale or tax exemption certificate, but Customer shall be responsible for any such applicable taxes whether or not invoiced for them by Seller. The Customer is responsible for knowing if they qualify to claim exemption from tax that would otherwise be due tax on this sale.
5.2 If the customer fails to make any payment on the due date then without prejudice to any other right or remedy available to it INTENSE shall be entitled to: (i) cancel the Agreement or suspend any further deliveries to the Customer; (ii) appropriate any payment made by the Customer to such of the Payment (or the Product supplied under any other contract between the Customer and INTENSE) as INTENSE may think fit (notwithstanding any purported appropriation by the Customer); (iii) charge a service charge of 1.5% per month, or the maximum amount allowed by law, on the past due amount; (iv) without limiting the above provisions, in the event Buyer does not pay all amounts (including service charges) due and owing within allowed payment terms; and (v) withhold further shipments until full payment is received. Shipment holds shall not constitute Seller’s breach and Seller in its sole discretion, may continue to perform in accordance with Buyer’s purchase order.
5.3 If Customer in good faith disputes any portion of an invoice, Customer will immediately notify INTENSE of such dispute and
deduct the disputed amount from payment to the extent reasonably contested by Customer, with the uncontested amounts being due and payable as set forth above. In such event, the parties shall negotiate in good faith to resolve the dispute within thirty (30) days of receipt of notice, unless otherwise agreed to by the parties.
5.4 As security for payment for any sum due to INTENSE, Customer hereby grants to INTENSE a security interest in all of Customer’s property in INTENSE’s possession. In furtherance thereof, Customer shall execute financial statement(s) on request {00631150 – 1} and irrevocably authorizes INTENSE to execute and file same.
5.5 In lieu of implementing price increases to account for the unprecedented cost increases that are being passed along to INTENSE by the various suppliers required to deliver the Product, INTENSE reserves the right to convey to Customer any increases in the cost of materials, they are incurred, and any other increases in input cost (e.g., labor, energy, etc.) that exceed current pricing for such inputs.
5.6 INTENSE shall have the right to revise the credit terms of this Agreement if it deems such action necessary to assure payment.
5.7 INTENSE reserves the right to require a deposit from Customer in the amount of 35% of the invoiced amount in connection with Customer purchases over $100,000 USD.
6. TERMINATION AND CHANGE
6.1 Either party may terminate the Agreement upon the other party’s: (i) material breach of the Agreement, including with respect to Customer, Customer’s failure to pay any amount when due under the Agreement; (ii) insolvency; (iii) filing of an involuntary or voluntary petition of bankruptcy; (iv) execution of an assignment for the benefit of creditors; or (v) appointment of a receiver over such party’s assets.
6.2 Additionally, Customer may terminate the Agreement or any order under the Agreement for its sole convenience, without reason or cause. In the event termination under Section 6.1 or 6.2, INTENSE shall be paid a reasonable termination charge consisting of 50% of the purchase order remaining contract value. Within 30 days after receipt of a termination notice, INTENSE shall submit an invoice outlining the amount of the initial purchase order, the value of the product delivered to date, and the remaining contract value. INTENSE shall not be paid for any work performed after receipt of the notice of termination, nor for any costs incurred by INTENSE.
6.3 Customer shall have the right to make any changes, additions or alterations in the items, quantities, destination, specifications, drawings, designs or delivery schedules. If the Customer wishes to make any changes, it shall submit details of the requested change to INTENSE in writing. INTENSE shall, within a reasonable time after such request, provide a written estimate to Customer of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Products arising from the change; (iii) the likely effect of the change on the Products and (iv) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties will undertake to negotiate an appropriate adjustment in price and terms. All changes and adjustments, if any, must be in writing and signed by a duly authorized representative of Customer.
7. DELIVERY
7.1 Any dates quoted for delivery of the Product are approximate only and INTENSE shall not be liable for any delay in delivery of the Product howsoever caused. Time for delivery shall not be of the essence unless previously agreed by INTENSE in writing. The Product may be delivered in advance of the quoted delivery date upon giving reasonable notice to the Customer.
7.2 Where the Product is to be delivered in instalments, each delivery shall constitute a separate contract and failure by INTENSE to deliver any one or more of the instalments in accordance with the Agreement or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Agreement as a whole as repudiated.
7.3 In the event that Customer changes the delivery date, Customer may be liable for all applicable fees incurred by INTENSE resulting from such change in delivery date, including inventory and storage fees. INTENSE may invoice Customer for Product produced, inventoried and storage fees and Customer shall pay for the units produced including storage fees.
8. EXPORT CONDITIONS
8.1 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Agreement between the parties is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
8.2 General Obligations. Buyer agrees to comply with all applicable laws and regulations of the IJ.S. and of other countries applicable to its performance under this Agreement, including in connection with its purchase, sale, resale, delivery, or redelivery of the Products pursuant to this this Agreement (such U.S. and other laws and regulations collectively referred to as “Laws”), as such Laws may change over time, including all import and export Laws. In the event of a conflict between U.S. Laws {00631150 – 1} and other Laws, applicable U.S. Laws shall prevail regardless of the legality of such a transaction under local Law. U.S. Laws include but are not limited to the Arms Export Control Act (22 U.S.C. 2751-2794), the International Traffic in Arms Regulations (ITAR) (22 C.F.R.120 et seq.), the Export Administration Act of 1979 (50 U.S.C. 2401-2420), the Export Administration Regulations (EAR) (15 C.F.R. 730-774), the Office of Foreign Assets Control (OFAC) regulations (31 C.F.R. Chapter V), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regulations (22 C.F.R. Parts 447,478,479, and 555) and U.S. customs regulations (19 CFR Part 4 to 199). If Seller authorizes Buyer in the Acknowledgement to resell the Products, Buyer will perform transaction due diligence on any proposed sale of FUR Product at the time of resale/retransfer to validate the legality of any proposed transaction under the Laws. Buyer will abide by the limitations (geographic or other) related to such sale contained in the Acknowledgment. Seller reserves the right, at its sole discretion, to decline or to cancel the unshipped balance of any or all orders for any reason. Where the product is supplied for export from the United States, the provisions of this Clause 8 shall (subject to any special terms agreed in writing between the Customer and INTENSE) apply notwithstanding any other provision of these Conditions.
8.3 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Product into the country of destination and for the payment of any duties thereon.
8.4 Unless otherwise agreed in Writing between the Customer and INTENSE, the Product shall be delivered ex-works. The risk and property in the Product shall pass when delivered by INTENSE into the custody of the first carrier.
8.5 If the customer is exporting this product outside the US, customer takes responsibility for complying with export control rules and regulations and appropriate documentation to US export authorities.
9. RETENTION OF TITLE
9.1 Title to the Product shall not pass to the Customer until INTENSE has received in full (in cash or cleared funds) all sums due to it in respect of the Product and all other sums which are of which become due to INTENSE from the Customer on any account. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to INTENSE a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New Jersey Uniform Commercial Code.
9.2 Until title to the Product has passed to the Customer, the Customer must: (i) store the Product (at no cost to INTENSE) separately from all other property of the Customer or any third party in such a way that they remain readily identifiable as INTENSE’s property; (ii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Product provided
that the Customer shall be entitled to incorporate the Product into its manufacturing process where it is part of the Customer’s ordinary course of business; and (iii) relinquish the Customer’s right to possession of the Product immediately upon a termination of the Contract by INTENSE under Section 6.1.
9.3 INTENSE shall be entitled to recover payment for the Product notwithstanding that title to any of the Product has not passed to the Customer. The Customer hereby grants to INTENSE, its agents and employees, an irrevocable license to enter the Customer’s premises where the Product are or may be stored in order to inspect them or retrieve them where the Customer’s right to possess them has ceased.
10. VENDOR PURCHASE ORDER REQUIREMENTS
10.1 Purchase Order must be confirmed within 24 hours. INTENSE shall be notified immediately of any discrepancies in Part number, Revision, Qty, Price or Del date. Any products sent for outside services shall be inspected upon receipt. INTENSE shall be notified of any damages or discrepancies in shipment. INTENSE shall wait for instructions on how to proceed.
10.2 If INTENSE does not specify the way the goods must be packaged, Seller must package the product in a manner which avoids damages. Certificate of compliance must accompany shipments when required on the Purchase Order. Partial shipments, Shortages/Overages will not be accepted unless authorized in advance. All shipments must be accompanied by packing slip
which contains Purchase Order, Part Number and Qty. Vendor shall be responsible for cost of product supplied should it be damaged beyond repair or lost. {00631150 – 1}
11. QUALITY POLICY
11.1 It is the policy of INTENSE to satisfy customer expectations by delivering quality products and service. At INTENSE we continuously improve our operations while sustaining an AS9100D & ISO 9001:2015 certified quality management system.
12. AS9100D:2016 STANDARDS
12.1 Vendors must comply with the requirements of AS9100D:2016 Quality management systems Section 8.4.3 (Information for External Providers). All finished products must be delivered to INTENSE compliant to AS9100D:2016 requirements:
12.1.1 Vendor must have proper controls of chemical materials in place (List of approved chemicals, MSDS, test reports, certificates of compliance).
12.1.2 Vendor should have proper work instructions for each manufacturing process in place. Vendors must have written procedures for nonconformity handling of materials in place.
12.1.3 Vendors must have waste handling / storage procedure or record in place. Vendors must have pest control procedures in place (list of trained pest control staff, contract with external pest control agency, pest control inspection record, bait documentation).
12.2 INTENSE as buyer reserves the right to evaluate the vendor’s performance on continuous basis. Seller shall have a process
for managing special items, critical items, and the variation of key characteristics (KCs) in place. This may include establishing statistical KC’s capability control methods and statistical techniques for product acceptance, in order to control the variation of key characteristics (KCs). For special items or critical items, INTENSE may request the vendor to adhere to AS9100 standard requirements (Requirement for appropriate quality management systems in place).
12.3 Vendor shall designate personnel with responsibility and authority to ensure that INTENSE and AS9100D:2016 requirements are addressed. This includes selection of appropriate product design and development. Vendor ensures that only competent staff are allowed to undertake work on INTENSE purchase order items. Vendor shall maintain key staff competencies under controlled conditions. A competency control system shall be in place at the seller, inclusive training on staff contribution to product or service conformity, contribution to product safety, and the importance of ethical behavior, to ensure that the quality of the product and service provided by seller adheres to form, fit and function. For critical safety related items, INTENSE as buyer requests seller to adhere to AS9100 standard requirements. For any work that involves health and safety risks, individual competence management is essential.
12.4 Vendor must ensure before product release to INTENSE, that their internal processes address the use of authorized manufacturers and/or designated sources (e.g., Qualified Product List {QPL}) and must ensure retained documented information is validated prior to the release of products and the documented information includes traceability to the designated source.
12.5 Seller shall notify INTENSE as buyer of any changes to processes, products, or services, including changes of the vendors external providers or location of manufacture, and obtain INTENSE approval, in regard to INTENSE purchase orders, which affect the flow down to external providers applicable requirements including customer requirements. Vendor shall at all times adhere to Counterfeit parts detection and control and notify INTENSE as the buyer about any INTENSE parts related nonconforming process, products, or services in relation to counterfeit parts management.
12.6 All products and finishes product deliveries to INTENSE must be ROHS compliant when applicable (EU sales only)
13. FORCE MAJEURE
Neither INTENSE nor the Customer shall be liable for any failure to fulfil any term or condition of the Agreement (other than the Customer’s payment obligations thereunder) if fulfillment has been delayed, hindered or prevented by any circumstances whatsoever beyond the reasonable control of the party concerned. Without prejudice to the generality of the foregoing the following shall be regarded as beyond the reasonable control of INTENSE or the Customer: (i) Act of God, explosion, flood, tempest, fire or accident; (ii) any strike, lockout or labor dispute to which the party concerned may be a party (whether or not the settlement thereof shall be at the discretion of the party concerned); (iii) import or export regulations or embargoes; (iv) war or threat of war, sabotage, insurrection, civil disturbance or requisition; and (iv) restrictions imposed by applicable law or regulation. {00631150 – 1}
14. GOVERNING LAW AND GENERAL CONSIDERATIONS
14.1 The Agreement shall be governed by the law of New Jersey, without giving effect to any choice or conflict of law provision. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. The state and federal courts located in New Jersey shall have exclusive jurisdiction to adjudicate any dispute concerning the Products or the Agreement. The Parties expressly waive any rights to a trial by jury.
14.2 Customer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of INTENSE. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under the Agreement.
14.3 The invalidity of one or more provisions of the Agreement shall not affect the remaining provisions and INTENSE and Customer shall each use their reasonable endeavors in good faith to modify the Agreement so that the intent of the Agreement can be legally carried out.
14.4 Failure, delay and neglect by INTENSE to exercise any right contained in the Agreement will not prejudice INTENSE’s rights to take subsequent action.
14.5 Provisions of the Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement.
14.6 Any notice required or permitted to be given by either party to the other under the Agreement shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
14.7 No waiver by INTENSE of any breach of the Agreement shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.8 The Agreement may only be amended or modified in a writing which specifically states that it amends the Agreement and is signed by an authorized representative of each party.
14.9 The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
14.10 The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
15. EQUAL OPPORTUNITIES CLAUSE
VENDOR SHALL ABIDE BY, AND ATTEST ITS SUPPLIERS AIBIDE, THE REQUIREMENTS OF 41 CFR §§ 60-1.4(A), 60-300.5(A), AND 60-741.5(A). THESE REGULATIONS PROHIBIT DISCRIMINATION AGAINST QUALIFIED INDIVIDUALS BASED ON THEIR STATUS AS
PROTECTED VETERANS OR INDIVIDUALS WITH DISABILITIES, AND PROHIBIT DISCRIMINATION AGAINST ALL INDIVIDUALS BASED
ON THEIR RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN. MOREOVER, THESE REGULATIONS REQUIRE THAT COVERED PRIME CONTRACTORS AND SUBCONTRACTORS TAKE AFFIRMATIVE ACTION TO EMPLOY AND ADVANCE IN EMPLOYMENT INDIVIDUALS WITHOUT REGARD TO RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, PROTECTED VETERAN STATUS OR DISABILITY.