PO Terms

1.     General.

Each purchase order placed by flō Optics Ltd. and its subsidiaries and affiliates (the “Company”) for Products (as defined below) is subject to these General Terms and Conditions for Purchase Orders (these “T&C”), the terms of the applicable Purchase Order (the “Purchase Order”) and any Statement of Work attached to the Purchase Order (the “SOW”) (collectively, the “Agreement”), regardless of other or additional terms or conditions that conflict with or contradict this Agreement in any non-negotiated document, quote, acknowledgement, or other communication. Preprinted terms and conditions on any document of the supplier whose name is stated on the Purchase Order (the “Supplier”) and/or Company’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement. If the parties have a negotiated agreement for the relevant Products, such terms will govern and supersede these terms and conditions. In the event of a conflict between any of these T&C and any specific term or condition (whether in the contract or otherwise) referred to in the Purchase Order (including SOW), these T&C shall prevail, unless the Purchase Order and/or SOW specifically states that they shall prevail over these T&C. Supplier shall be deemed to have agreed to be bound by the Agreement by accepting the Purchase Order or delivering and/or performing the Products. As used herein, the term “Products” means the goods supplied by Supplier pursuant to or in connection with the Purchase Order, and shall include both tangible and intangible goods, including components, software, service requirements, spare parts and any related software and/or documentation that may accompany the Products. Reference to “Products” shall where appropriate be deemed to include services.

2.     Orders. 

Supplier shall acknowledge Company’s Purchase Orders in writing within three (3) business days of receipt. Purchase Order’s acknowledgments shall contain Supplier’s promised delivery date (the “Delivery Date”). All Purchase Orders will be deemed accepted by Supplier, per Company’s requested Delivery Date, if Supplier does not provide a written notice of rejection within three (3) business days of the receipt of the Purchase Order. No partial fulfillment of a Purchase Order is permitted unless approved in advance and in writing by the Company. The Company may change or cancel Purchase Orders or reschedule shipment or Delivery Date for any Products ordered, by not less than ten (10) business days written notice prior to the latest confirmed Delivery Date. In the event that as a result of a change to the terms of the Purchase Order there is a material change to the cost of Products, Company and Supplier shall negotiate in good faith the adjustment of the Purchase Order Price (as defined below) or Delivery Date, or both, as applicable. The Supplier shall be deemed to have waived any claim or action in connection with any changes to the Purchase Order, not delivered to the Company in writing within three (3) business days following such written notice of changes was provided by the Company.

3.     Prices; Payment Terms.

The price for any Products will be set forth in the Purchase Order (the “Price”). Unless expressly agreed otherwise by the Company in writing, the Price shall be inclusive of all delivery and insurance costs, all applicable taxes, duties or levies, including sales/use taxes, transaction privilege taxes, gross receipts taxes, and other charges such as duties, customs, tariffs, imposts, Value Added Tax (“VAT”) and government-imposed surcharges. Unless otherwise stated in the Purchase Order, the Company shall pay the undisputed portion of properly submitted invoices within 45 days from the end of the month in which the Products have been received. Invoices shall not be rendered by the Supplier until completion of delivery of all the Products which are the subject of the Purchase Order. Supplier agrees to invoice the Company no later than one hundred eighty (180) days after completion of the delivery. The Company will not be obligated to make payment against any invoices submitted after such period. The Company has the right to withhold or deduct by way of set-off or otherwise from any monies due or to become due to the Supplier any monies due to the Company from the Supplier. In the event that the Company is required by law to deduct or withhold taxes from payment to Supplier, then the Company shall withhold such taxes and shall pay to Supplier the remaining amount after the taxes have been withheld. No payment of or on account of the Price shall constitute acceptance by the Company of the Products or any admission by the Company as to proper performance by the Supplier of its obligations under the Agreement.

4.     Delivery; Title.

The Products shall be delivered according to the delivery schedule specified in the Purchase Order, to the place named on, and in accordance with, the Purchase Order (the “Delivery Point”). Delivery shall be completed when the Products have been unloaded at the Delivery Point and delivery has been accepted by the Company or its authorized representative. Supplier acknowledges that time is of the essence for delivery of Products. Supplier must immediately notify the Company if Supplier is likely to be unable to meet a Delivery Date. In the event that the Supplier fails to meet the scheduled Delivery Date, other than in cases of Force Majeure (as defined below), and the Products were not supplied within ten (10) business days from the scheduled Delivery Date (the “Grace Period”), the Company (at its option) is entitled to release itself from any obligation to accept and pay for the Products and/or to cancel all or part of the Products under the Purchase Order, in either case without prejudice to its other rights and remedies. Supplier may not deliver before the promised Delivery Date without the Company’s prior written approval. Supplier warrants the title to all Products sold to the Company and warrants that such Products are not subject to security interests, liens, or other encumbrances or any third party rights. Title and risk of loss shall pass to the Company at the Company’s destination. For the avoidance of any doubt, under no circumstance shall the Company be the importer of record for this engagement. Unless otherwise stated in the Purchase Order, the Supplier is responsible for obtaining and the cost of all the export and import licenses for the Products.

5.     Acceptance; Product Return.

All Products are subject to inspection and testing by the Company before acceptance. The Company shall have ninety (90) days (the “Inspection Period“) following the delivery of the Products at the Delivery Point or performance of the applicable services to undertake such inspection, and upon such inspection the Company shall either accept the Products by issuing an acceptance certificate (“Acceptance“) or reject them. The Company shall have the right to reject any Products that are delivered in excess of the quantity ordered or are damaged or defective or otherwise not in compliance with any Product Warranty (as defined below). Transfer of title to the Company of Products shall not constitute the Company’s Acceptance of those Products. The Company shall be entitled to make any inspections or tests it may reasonably require in relation to the Products and the Supplier shall afford all reasonable facilities and assistance free of charge at the Company’s premises. The Company shall provide Supplier within the Inspection Period notice of any Products that are rejected, together with the reasons for such rejection. If the Company does not provide Supplier with any notice of rejection within the Inspection Period, then the Company will be deemed to have provided Acceptance of such Products. The Company’s inspection, testing, or Acceptance or use of the Products shall not limit or otherwise affect Supplier’s warranty obligations hereunder or under applicable law with respect to the Products, and such warranties shall survive inspection, test, Acceptance and use of the Products. If the Company so rejects the Products or any part thereof, Supplier will, at the Company’s election (without prejudice to its other rights and remedies) either: (i) replace such nonconforming Products, with Products which comply in all respects with the requirements under this Agreement, (ii) repair the defective Products as quickly as possible or (iii) refund the Company the Price for such nonconforming Products. Return of Products that are not in conformance with the Purchase Order, over- shipments, recalled products, and shipments rejected due to early or late delivery will be returned freight collect at Supplier’s risk and expense. Nothing contained in this Agreement shall in any way detract from the Supplier’s obligations under law or statute or any express warranty or condition contained in the Purchase Order.

6.     Supplier’s Representations and Warranties.

Supplier represents and warrants to the Company, as follows:

6.1.     Compliance With Law. That the design, construction and quality of the Products shall comply in all respects with all requirements of any statutory regulation, order, contract or any other instrument having the force of law, which may be in operation at the time when the Products are supplied.

6.2.     Supplier’s Warranty.  That for a period of eighteen (18) months from the Acceptance (as defined below) of the Products (subject to any alternative guarantee arrangements agreed in writing between the Company and the Supplier) (the “Warranty Period”), the Products shall (a) conform in all respects with any particulars, specifications and/or standards specified in the Purchase Order; (b) be of satisfactory quality and free from defects in materials and workmanship; and (c) be fit and sufficient for the purpose for which such Products are ordinarily used and for any particular purpose made known to the Supplier by the Company and the Company relies on the skill and judgement of the Supplier in the supply of the Products and the execution of the Purchase Order (each of the warranties under subsections (a)-(c), a “Product Warranty”). Supplier further represents and warrants that any work or service which is the subject matter of the Purchase Order shall be performed by Supplier while exercising that degree of professionalism, skill, diligence, care, prudence, judgment, and integrity which would reasonably be expected from a skilled and experienced service provided providing services under the same or similar circumstances as the services under this Agreement, and using only personnel with the skills, training, expertise, and qualifications necessary to carry out such services. The Company is authorized to pass this Product Warranty through to the Company’s customers and end users. Any Product to be returned under the terms of the Product Warranty may be shipped to Supplier either from the Company or directly from Company’s customers or end users. If the Company shall, within the Warranty Period or within thirty (30) days thereafter, give notice in writing to the Supplier of any defect in any of the Products that have arisen during the Warranty Period under proper and normal use, the Supplier shall (without prejudice to any of the Company’s other rights and remedies) as quickly as possible remedy such defects (but in no event later than 30 days from the return of the defective Product to Supplier), whether by repair or replacement as the Company shall elect in its sole discretion, without cost to the Company (or its customer or end user). If Supplier is unable to correct or replace the defective Product as warranted within the said time schedule, Company shall receive a refund for the fees actually paid by it to Supplier for the defective Product. Any Products returned under such Product Warranty to Supplier shall be returned to the Supplier at the Supplier’s sole risk and expense. If Products are repaired or replaced or services are re-performed, the Product Warranties will continue as to the repaired or replaced Products until the later of the expiration of the original Warranty Period or three (3) months as of the date of Acceptance of the repaired or replaced Products by the Company.

6.3.     New/Unused Product. That the Products provided to the Company by the Supplier are new and unused.

6.4.     Original Manufacture Parts. That it is either the original equipment manufacturer (“OEM”), original component manufacturer (“OCM”), or a franchised or authorized distributor of the OEM/OCM for the Products; or if Supplier is not the OEM/OCM or a franchised or authorized distributor of the OEM/OCM, then Supplier confirms by acceptance of orders hereunder that the Products have been procured from the OEM/OCM or a franchised or authorized distributor of the OEM/OCM.

7.     Labelling; Packaging.

The Products shall be packed and marked in a proper manner and in accordance with good commercial practice for protection against damage, any statutory requirements, any requirements of the carriers and as otherwise required under the Purchase Order. In particular the Products shall be marked with the Purchase Order Number, and the net and gross weights and details of the contents shall be clearly marked on each container and all containers of hazardous goods (and all relating documents) shall bear prominent and adequate warnings. The Supplier shall indemnify and keep indemnified the Company against all actions, suits, claims, demands, losses, charges, costs and expenses (including legal expenses and disbursements) which the Company may suffer or incur as a result of or in connection with any breach of this Section.

8.     Intellectual Property.

8.1.     All documents, drawings, specifications, information, patents, patent applications, inventions, developments or processes or any copyrightable material or any other intellectual property rights originated and developed by Supplier specifically for the Company under this Agreement or on the basis of information provided by the Company (a “Work Product”), shall be owned from the moment of their creation by the Company. All specifications provided by the Company, and all intellectual property rights in or arising out of them and from the Work Product, shall vest in and remain at all times the property of the Company. Such specifications may only be used by Supplier as necessary to perform under this Agreement. Supplier agrees, no additional cost to the Company, to provide the Company all assistance reasonably requested by the Company to perfect the rights described herein, including obtaining all assignments and waivers of moral rights necessary or appropriate to vest the entire right, title and interest in such materials in the Company and its successors and assigns.

8.2.     To the extent that the Products contain any intellectual property of Supplier or any third party (which is not subject to Section ‎8.1), Supplier hereby grants to the Company an unlimited, worldwide, irrevocable, royalty-free, non-exclusive, perpetual, transferable, assignable and licensable license to use, copy, modify, create derivatives and distribute such intellectual property. Ownership and intellectual property rights to any modifications made to such intellectual property rights by the Company shall belong to the Company.

8.3.     If the deliverables created as a result of services performed by the Supplier hereunder include software or modifications or updates thereto or dedicated software modules or parts thereof, the Supplier shall submit to the Company both a machine-readable and a source code version of the same, including documentation (e.g. specification documents). If the parties agree on the use of open-source code software as part of the delivery of Products, the Supplier shall inform the Company in advance in writing of any terms related to the right to use the said software as well as of any other terms and limitations that the Company must comply with when using the open source code software. The Supplier shall be exclusively liable for ensuring that the use of the open-source code software in compliance with the Agreement does not result in the terms concerning the right to use such software being applied to other parts of the delivery or other software used by the Company.

8.4.     It is hereby clarified that except as set forth in this Section ‎8, nothing in this Agreement shall transfer or be deemed to transfer the intellectual property rights of either party or any third party.

8.5.     Supplier warrants that any and all Products purchased hereunder, and the manufacture, sale, or use thereof, do not and will not violate or infringe upon any patent, copyright, trademark, trade secret, design right, or other intellectual property right of any third party (in each case, whether registered or not) (collectively, the “Intellectual Property”), and the Supplier shall, at its own cost and expense, forever defend, indemnify and hold the Company, its successors and assigns harmless from and against any and all liabilities, damages, losses, penalties, costs and expenses of whatsoever nature (including without limitation, penalties, judgments, liabilities, court costs and reasonable legal and professional fees and expenses) (collectively, “Loss”) resulting, arising out of, or in connection with any actions, suits, claims, demands, proceedings and liabilities (a “Claim”), brought against the Company its successors and assigns by reason of actual or alleged infringement or contributory infringement of any Intellectual Property in connection with this Agreement (an “IP Infringement”). This provision shall apply without regard to any Claim being ultimately determined to have been unjustified or unfounded. The Company will provide Supplier with written notice of any such Claim, grant full authority to Supplier to defend and settle such Claim, and upon Supplier’s request, provide reasonable assistance and information, at Supplier’s cost and expense.

8.6.     In the event that any Products provided by Supplier to the Company are subject to a Claim of IP Infringement, Supplier shall, at its own option and expense, without prejudice to any other right or remedy available to the Company (including indemnification rights hereunder), promptly provide the Company with a commercially reasonable alternative, including the procurement for the Company of the right to continue using the Products in question, the replacement of such Products with a non-infringing alternative satisfactory to the Company, or the modification of such Products (without affecting functionality) to render them non-infringing, or if Supplier is unable to provide the remedies above, refund the full purchase price for such Product.

8.7.     The Company is authorized to use Supplier’s trademarks, trade names and logos in connection with the Products.

9.     General Indemnification.

Supplier will indemnify, defend and hold the Company, its successors and assignees, harmless of and from any and all Losses resulting from or arising out of (a) death or personal injury arising out of, or in any way connected with, the Products or the sales, distribution, use or operation thereof or the negligence, acts or omissions of the Supplier; (b) breach by Supplier of any warranty, representation, or covenant under this Agreement; (c) breach of contract; (d) non-compliance with requirements hereunder or applicable laws, regulations, directives, or ordinances; or (e) damage to property arising out of, or in any way connected with, the Products or the sales, distribution, use or operation thereof or the negligence, acts or omissions of the Supplier.

10.    Insurance.

The Supplier shall take out and maintain with a reputable insurance company a policy or policies of insurance that are normal for contracts of this nature and covering all the matters which are the subject of indemnities under these T&C.  The Supplier shall, at the request of the Company, make available the policy for review.

11.    Limitation Of Liability.

EXCEPT FOR SUPPLIER’S LIABILITY FOR IP INFRINGEMENT, BREACH OF CONFIDENTIALITY, INDEMNIFICATION OBLIGATIONS, WILLFUL ACT OR OMISSION OF SUPPLIER OR ANYONE ACTING ON ITS BEHALF, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS OR REVENUE, DATA, GOODWILL, OR BUSINESS OPPORTUNITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

12.    Health; Safety.

The Supplier represents and warrants to the Company that the Supplier has satisfied itself that: (a) all necessary tests and examinations have been made or will be made prior to delivery of the Products to ensure that the Products are designed, manufactured, supplied and installed so as to be safe and without risk to the health or safety of persons using the same; and (b) that it has made available to the Company adequate information about the use for which the Products have been designed and have been tested and about any conditions necessary to ensure that when put to use the Products will be safe and without risk to health.

13.     Confidentiality.           

The Supplier represents and warrants that anyone acting on its behalf shall keep confidential and not disclose any information of a confidential nature obtained by reason of this Agreement except information which is in the public domain through no fault of the Supplier. Supplier shall not use any such confidential information except as required for the performance of this Agreement and shall treat such information in the same manner as it treats its own confidential information, but not less than reasonable care. Supplier shall not disclose the existence of this Agreement, nor any of its details or the existence of the relationship created thereby to any third party without the specific, written consent of the Company.  The Supplier shall not knowingly engage the Company’s customers for the purpose of providing or selling Products specifically used in the Company’s products. If disclosure of any confidential information is required by applicable law, rule, or regulation, or is compelled by a court or governmental agency, authority, or body, Supplier shall inform the Company at least ten (10) business days in advance of the disclosure and shall give the Company a reasonable opportunity to review and comment upon the disclosure, and any request for confidential treatment or a protective order pertaining thereto, prior to making such disclosure.

14.      Termination.

14.1. In the event of a material breach of the Agreement by either party, the non-breaching party may terminate the Agreement with immediate effect by notice in writing.

14.2. The Company may terminate the Agreement with immediate effect by notice in writing to the Supplier if at any time: (a) Supplier is involved in any legal proceedings concerning its solvency, or ceases to conduct business, or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, winding up or reorganization, whether compulsory or voluntary, or a receiver, trustee or liquidator has been appointed with respect to all or part of its assets, and such proceedings or nomination has not been dismissed within 30 (thirty) days, or Supplier executes any assignment for the benefit of creditors; (b) an attachment has been imposed on a substantial part or all of the assets of the Supplier and/or a third party has commenced such enforcement proceedings against the Supplier which have not been removed within 30 (thirty) days.

14.3. The provisions of this Agreement which expressly or by their nature are required to survive termination of this Agreement (including but without limitation, provisions regarding confidentiality, intellectual property, and liability) shall survive the expiration or termination of this Agreement for whatever reason.

15.     Miscellaneous.

15.1. This Agreement shall be governed, construed, and enforced in accordance with the laws of the state of Israel, excluding its choice of law provisions. The parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction and venue of the component courts of Tel Aviv, Israel in respect to any and all controversies arising out of, or relating to, this Agreement. The United Nations Convention for the International Sale of Goods shall not apply.

15.2. Supplier may not assign or subcontract this Agreement, in whole or in part, without the Company’s prior written consent. Supplier’s permitted assignment or subcontracting of this Agreement or any part thereof will not release Supplier of its obligations under this Agreement, and it will remain jointly and severally liable with the assignee or subcontractor for any obligations assigned or subcontracted. The acts of omissions of any subcontractors of Supplier will be deemed to be the acts and omissions of the Supplier. The Company may assign this Agreement, in whole or in part, to any of its affiliates or as part of a sale of all or substantially all of its assets or shares, by wat of merger of otherwise, without the consent of Supplier. This Agreement shall endure to the benefit of and be binding upon the parties and their respective legal personal representatives, heirs, executors, administrators, successors and permitted assigns.

15.3. Supplier shall have no, and hereby waives, any right of lien under applicable law, including in respect of the Products.

15.4. This Agreement can only be modified in writing signed by authorized representatives of both the Company and Supplier.

15.5. The Company and Supplier are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership, and in no way will Supplier or its employees be considered employees, agents, partners, fiduciaries, or joint ventures of the Company. Supplier and its employees will have no authority to represent the Company or bind the Company in any way, and neither Supplier nor its employees will hold themselves out as having authority to act for the Company.

15.6. The Company’s failure to object to any document, communication, or act of Supplier will not be deemed a waiver of any of these terms and conditions. Notwithstanding any other remedies provided in this Agreement, the Company retains all rights existing at law or equity, and the Company’s failure to affect cover does not bar it from any other remedy.

15.7. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions.

15.8. Neither party shall be liable for failure to fulfill its obligations under this Agreement to the extent caused by a condition that was beyond its reasonable control (for example: acts of nature, natural disasters, act of war or terrorism, riots, epidemic) which could not have been reasonably foreseen by such party (a “Force Majeure”).

15.9. Notwithstanding anything else contained in this Agreement, Supplier agrees that failure to perform certain obligations undertaken in connection with this Agreement, including the due delivery of the Products, would cause irreparable damage, and that monetary damages would not provide an adequate remedy in such event. Accordingly, it is agreed that, in addition to any other remedy to which the Company may be entitled, at law or in equity, the Company shall be entitled to injunctive relief to prevent breaches of the provisions of this Agreement, and an order of specific performance to compel performance of such obligations in any action instituted in any court having subject matter jurisdiction, without proving its damages and without posting a bond.

15.10.     Supplier understands that where there is agreement to provide personal services, the Company has the right to demand specific performance of Supplier’s obligations herein and such other equitable remedies as may be appropriate should Supplier fail to perform.

15.11.     The headings in these T&C are for convenience only and shall not affect its construction or interpretation. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders. Where this Agreement uses the word “including,” it means “including without limitation,” and where it uses the word “includes,” it means “includes without limitation.

15.12.     Any notices to be given under the Agreement shall be delivered personally or sent by post or by electronic mail, and shall be deemed to be served, if delivered personally, at the time of delivery, if sent by post, 48 hours after posting or, if sent by election mail, upon transmission or (if transmitted and received on a non-business day) on the first business day following transmission, subject to confirmation of delivery.

15.13.     The Supplier agrees to provide written notice to the Purchaser at least 180 days prior to the discontinuation or end-of-life status of any product, service, or component covered under this agreement. Such notice shall include details on potential replacements, last-order opportunities, and support provisions available post-discontinuation.