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JDS Uniphase Terms and Conditions of Sale
The Terms and Conditions of Sale and Software license (collectively "Agreement") contained herein constitute the entire agreement between
JDS Uniphase Corporation, or its subsidiary, as set forth on the document referencing this Agreement, ("JDSU") and you ("Customer"). JDSU will
not be bound by any terms of Customer's order. No form of acceptance except JDSU's written acknowledgment sent to Customer, or JDSU's
commencement of performance shall constitute valid acceptance of Customer's order. Any such acceptance is expressly conditioned on assent
to the terms hereof and the exclusion of all other terms. Customer shall be deemed to have assented to the terms hereof, whether or not previ-
ously received, upon accepting delivery of any Product (as defined herein) shipped by JDSU. If tender of these terms is deemed an offer; accep-
tance is expressly limited to the terms hereof.
1. PRODUCTS
1.1 "Products" shall mean any products or services identified on (a) any of JDSU's proposals, quotations or order acknowledgements, (b) current
applicable price lists, (c) any of JDSU's invoices or (d) the document referencing this Agreement, in each case having the JDSU specification
applicable to the relevant product.
1.2 Alterations to any Product which JDSU deems necessary to comply with specifications, changed safety standards or governmental regula-
tions, to make a Product non-infringing with respect to any intellectual property or other proprietary interest, or to otherwise improve a Product
may be made at any time by JDSU without prior notice to, or consent of, Customer and such altered Product shall be deemed fully conforming.
2. ORDERS: Customer shall purchase Products by issuing a written purchase order signed by an authorized representative, indicating specific
Products, quantity, price, total purchase price, shipping instructions, requested delivery dates, bill-to and ship-to addresses, tax exempt certifica-
tions, if applicable, and any other special instructions. Any contingencies contained on such order are not binding upon JDSU. All orders are sub-
ject to acceptance by JDSU, who will accept or reject orders according to JDSU's then current processes.
3. PRICES: All prices are (a) firm for thirty (30) days from the date of quotation, (b) FCA JDSU factory [Incoterms, 2000] (shipping costs and risk
of loss from the FCA point of shipment are the responsibility of Customer) and (c) exclusive of Taxes (as defined herein) and all handling or other
charges including without limitation insurance, brokerage fees, transportation or special packaging ("Charges"). All sales are final. Title to Prod-
ucts (excluding services) shall pass from JDSU to Customer upon delivery to the shipping carrier at the FCA point. Any tax or other charge which
JDSU is liable to collect on behalf of any governmental authority ("Taxes") as a result of the sale, use or delivery of Products, including without
limitation, duties, value added and withholding taxes, is the responsibility of the Customer, and if paid by JDSU shall be charged to Customer as
a separate item on the invoice, to the extent possible.
4. TERMS OF PAYMENT: Upon credit approval by JDSU, payment terms shall be net thirty (30) days from the date of the shipment, or in the
case of services, net thirty (30) days from the date of completion. JDSU reserves the right to require alternative payment terms including, without
limitation, letter of credit or payment in advance. If at any time Customer is delinquent in the payment of any invoice or is otherwise in breach of
this Agreement, JDSU may, at its discretion, stop performance of services or withhold shipment (including partial shipments) of any order and
may, at its option, require Customer to pre-pay for further performance or shipments. All payments not received when due shall be subject to an
additional charge of one and one half percent (1.5%) per month (annual rate 19.56%) of the unpaid amount or the maximum rate permitted by
law, whichever is less, until the date of payment. Customer grants JDSU a security interest in Products (excluding services) purchased under this
Agreement to secure payment for those Products purchased. If requested by JDSU, Customer agrees to execute financing statements to perfect
such security interest. There is no set-off right for the Customer.
5. PERFORMANCE AND SHIPPING: Performance and shipping dates specified or communicated by JDSU to the Customer are approximate
dates only and the failure to perform or ship on such dates shall not be considered a breach by JDSU. Delivery shall be deemed made upon
transfer of possession to the carrier at the FCA point. All claims for shortage of Products ordered or for incorrect charges must be presented to
JDSU within ten (10) days after receipt by Customer of the particular shipment of Products. Customer shall be responsible for all Charges.
Unless given written instruction, JDSU shall select the carrier. JDSU shall not be liable for damages or penalty for delay in delivery or for failure
to give notice of any delay, and the carrier shall not be deemed to be an agent of JDSU. Notwithstanding any provision of this Agreement, each
Product shall be deemed accepted by Customer upon delivery.
6. CANCELLATION: The Customer may not cancel, terminate, suspend performance of, or issue a hold on, any Customer order, in whole or in
part, without the prior written consent of JDSU, which consent, if given, shall be upon terms that will compensate JDSU for any loss or damage
therefrom, including but not limited to any work in process or services performed, the price of Products shipped to, manufactured for, or held sep-
arately for, the Customer, and loss of profits, incurred costs, and a reasonable allocation of general and administrative expenses relating to the
Products.
7. LIMITED PRODUCT WARRANTY: Notwithstanding any provision to the contrary (but subject to the operation of any law to the extent it can-
not be excluded), JDSU's sole and exclusive obligations to the Customer for any Product (other than Software, as defined and warranted below
and services as warranted below) made by JDSU and sold hereunder are to repair returned Product or provide a replacement Product, at
JDSU's sole option, for any Product which has been returned to JDSU under the RMA procedure (as defined below) and which in the reasonable
opinion of JDSU is determined to be defective in workmanship, material or not in compliance with the JDSU specification applicable to the Prod-
uct and has in fact failed under normal use on or before one (1) year from the date of original shipment of the Product. All Products, which are
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