Sales & Service Terms

1.2 The Agreement contains all the terms and conditions applicable to the supply of Goods.

1.3 The Order Form may contain additional terms and conditions applicable to Customer (the “Additional Terms”). To the extent any such Additional Terms conflict with these Terms and Conditions, the Additional Terms shall govern solely to the extent they conflict with these Terms and Conditions.

1.4 Any capitalized term not otherwise defined herein shall have the meaning ascribed to it in the Order Form.

2. DEFINITIONS AND INTERPRETATION

2.1 Definitions. In the Agreement, the following definitions apply:

Business Day - any day of the week (other than a Saturday, Sunday or national holiday) when banks in the United States are typically open for business;

Customer - M Squared USA’s customer as detailed in the Order Form;

Goods - the specific goods and related services (or any part thereof and any and all documentation related thereto) set out in the Order Form;

Intellectual Property Rights - any and all patents, copyrights (whether or not registrable), trademarks, service marks, trade secrets, know-how, database rights and any other rights in the nature of intellectual property and/or proprietary rights (whether registered or unregistered) and all applications for the same, anywhere in the world;

M Squared Group - M Squared USA together with its parent entity M Squared Lasers Limited, and any subsidiaries or affiliated companies of either;

Order - the order for Goods as detailed in the Order Form;

Software - any proprietary software code embedded within Goods, or any part thereof;

Software Licence - the click-through software terms and conditions relating to the Software; and

Specification - any specification relating to Goods which details a requirement by Customer for a bespoke (i.e., not off-the-shelf) manufacturing element, including any related plans and drawings, that is set forth in the Order Form or otherwise agreed in writing by Customer and M Squared USA.

2.2 Interpretation. In these Terms and Conditions, the following rules apply:

2.2.1 a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

2.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;

2.2.3 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

2.2.4 any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

2.2.5 a reference to “writing” or “written” includes faxes and e-mails.

3. BASIS OF AGREEMENT

3.1 These Terms and Conditions apply to the Agreement to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

3.2 Customer is responsible for ensuring that the terms of the Order Form and any applicable Specifications are complete and accurate.

3.3 The Agreement shall only be deemed to be effective once each party has duly signed the Order Form.

3.4 Any samples, drawings, descriptive matter, advertising or any other materials produced by or on behalf of M Squared USA, including any descriptions or illustrations contained in M Squared USA’s catalogues or brochures, are provided for the sole purpose of giving an approximate idea of goods described in them. They shall not form part of the Agreement or have any contractual force. 

4. CREDIT APPROVAL

4.1 Unless otherwise agreed in writing between M Squared USA and Customer, effectiveness of the Agreement is subject to the condition that M Squared USA obtains satisfactory credit approval from its credit insurers for the Agreement. In the event such approval is not granted, in terms which M Squared USA in its sole discretion considers satisfactory, M Squared USA may by notice in writing intimate to Customer that such condition has not been satisfied. In that event M Squared USA shall not in any circumstances incur any liability to Customer in respect of any matters directly or indirectly related to the Agreement.

5. DELIVERY

5.1 M Squared USA shall ensure that:

5.1.1 each delivery of Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and M Squared USA reference numbers, the type and quantity of Goods (including the code number of Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

5.1.2 if M Squared USA requires Customer to return any packaging materials to M Squared USA, that fact is clearly stated on the delivery note. Customer shall make any such packaging materials available for collection at such times as M Squared USA shall reasonably request. Returns of packaging materials shall be at M Squared USA’s expense.

5.2 M Squared USA shall deliver Goods to the location set out in the Order or such other location as the parties may agree in writing (the “Delivery Address”) at any time after M Squared USA notifies Customer that Goods are ready to be dispatched, shipped and delivered to Customer.

5.3 Delivery of Goods shall be completed upon Goods’ arrival at the Delivery Address.

5.4 Any dates quoted for delivery of Goods are approximate only, and the time of delivery of Goods is not of the essence. M Squared USA shall not be liable for any delay in delivery of Goods that is due to causes beyond its reasonable control, including, but not limited to, labour disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, natural disasters or governmental action (a “Force Majeure Event”) or Customer’s failure to provide M Squared USA with adequate delivery instructions or any other instructions that are relevant to the supply of Goods.

5.5 If M Squared USA fails to deliver Goods in accordance with the Agreement, its liability shall be limited to M Squared USA refunding Customer cost of Goods already paid. This shall be Customer’s sole remedy in the case of M Squared USA’s failure to deliver Goods.

5.6 If Customer fails to take delivery of Goods within three (3) Business Days of M Squared USA notifying Customer that Goods are ready for delivery pursuant to Section 5.2, then, except where such failure or delay is caused by a Force Majeure Event or M Squared USA’s failure to comply with its obligations under the Agreement:

5.6.1 delivery of Goods shall be deemed to have been completed at 9:00 am (at the Delivery Address) on the third (3^rd) Business Day after the day on which M Squared USA notified Customer that Goods were ready for delivery and risk shall pass to Customer in accordance with Section 9.1 (but title shall not pass until full payment is received in accordance with Section 9.2); and

5.6.2 M Squared USA shall store Goods until delivery takes place, and charge Customer for all related costs and expenses (including insurance) of such storage.

5.7 If ten (10) Business Days after the day on which M Squared USA notified Customer that Goods were ready for delivery Customer has not taken delivery of them, M Squared USA may resell or otherwise dispose of part or all of Goods, with no refund due to Customer in respect thereof.

5.8 M Squared USA may deliver Goods by instalments, in which event, such Goods shall be invoiced separately. Any delay in delivery or defect in an instalment shall not entitle Customer to cancel any other instalment.

5.9 One or more M Squared Group personnel may accompany the delivery of Goods, in particular but without limitation where M Squared USA are providing installation services. Customer shall be responsible for the safety of all M Squared Group personnel while such personnel are on Customer’s premises.

6. CANCELLATION

6.1 Unless previously agreed to by M Squared USA in writing, M Squared USA will not accept the cancellation of the Order Form nor the return of Goods for a refund in any amount or credit. Where such cancellation is agreed, M Squared USA reserves the right to charge Customer the amount of any loss or expense incurred or cost of material used in satisfying the Order and a reasonable amount for overhead charges and profits.

7. CUSTOMER’S INSOLVENCY OR INCAPACITY

7.1 If Customer becomes subject to an event of insolvency or incapacity including, notwithstanding the generality of the foregoing:

7.1.1 Customer, suspends, or threatens to suspend, payment of its debts as they fall due or admits an inability to pay its debts;

7.1.2 Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;

7.1.3 Customer’s financial position deteriorates to such an extent that in M Squared USA’s opinion Customer’s capability to adequately fulfill its obligations under the Agreement has been placed in jeopardy; or

7.1.4 an event occurs, or proceedings are taken, with respect to Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any events mentioned in this Section 7, or M Squared USA reasonably believes that Customer is about to become subject to any of them and notifies Customer accordingly, then, without limiting any other right or remedy available to M Squared USA, M Squared USA may cancel or suspend all further deliveries under the Agreement or under any other Agreement between Customer and M Squared USA without incurring any liability to Customer, and all outstanding sums in respect of Goods delivered to Customer shall become immediately due.

8. LIMITED WARRANTY

8.1 Unless otherwise specified in the Agreement, M Squared USA warrants to Customer that, on delivery, and for a period of the earlier of (i) 12 months or (ii) 5,000 hours’ usage of Goods, from the date of delivery (the “Warranty Period”), Goods shall conform in all material respects with their description in the materials provided to Customer by M Squared USA and any applicable Specification.

8.2 Subject to Section 8.3, if:

8.2.1 Customer gives notice in writing to M Squared USA during the Warranty Period within 10 Business Days of discovery that some or all Goods do not comply with the warranty set out in Section 8.1;

8.2.2 M Squared USA is given a reasonable opportunity of examining such Goods and determines that some or all of Goods do not, in fact, comply with the warranty set out in Section 8.1; and

8.2.3 Customer (if asked to do so by M Squared USA) returns such Goods to M Squared USA’s place of business at M Squared USA’s cost,

M Squared USA shall, at its option, repair or replace the defective Goods, or refund the price of defective Goods in full. The remedy set forth in this Section 8.2 shall be Customer’s sole remedy with regard to Goods that do not comply with the warranty set forth in Section 8.1.

8.3 M Squared USA shall not be liable for Goods’ failure to comply with the warranty set out in Section 8.1 in any of the following events:

8.3.1 Customer makes any further use of such Goods after giving notice in accordance with Section 8.2;

8.3.2 the defect arises as a result of or related to Customer’s failure to follow M Squared USA’s oral or written instructions as to the storage, commissioning, installation, use and/or maintenance of Goods or (if there are no such instructions) good trade practice regarding the same;

8.3.3 the defect arises as a result of M Squared USA following any drawing, design or Specification supplied by Customer;

8.3.4 Customer alters or repairs such Goods without the written consent of M Squared USA;

8.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

8.3.6 Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

8.4 Except as expressly provided in this Section 8, M Squared USA shall have no liability to Customer in respect of Goods’ failure to comply with the warranty set out in Section 8.1.

8.5 The express warranty made by M Squared USA in Section 8.1 is in lieu of and to the exclusion, to the fullest extent permitted by law, of all other conditions, terms, warranties and undertakings, express or implied, statutory or otherwise, including without limitation as to the condition, quality, merchantability, performance and fitness for purposes of Goods or any part thereof.

8.6 These Terms and Conditions shall apply to any and all Goods, including repaired or replacement Goods, supplied by M Squared USA. 

9. RISK AND TITLE

9.1 All risk associated with handling or otherwise possessing Goods shall pass to Customer upon completion of delivery in accordance with the terms of the Agreement, including in the event of constructive delivery pursuant to Section 5.6.

9.2 Title to Goods shall not pass to Customer until M Squared USA has received payment in full (in cash or cleared funds) for Goods.

9.3 Until title to Goods has passed to Customer, Customer shall: 

9.3.1 hold Goods on behalf of M Squared USA in a safe and secure location; 

9.3.2 store Goods separately from all other goods held by Customer so that they remain readily identifiable as M Squared USA’s property; 

9.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to Goods;

9.3.4 maintain Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

9.3.5 notify M Squared USA immediately if it becomes subject to any of the events listed in Section 7.1; and

9.3.6 give M Squared USA such information relating to Goods as M Squared USA may require from time to time, but Customer may resell or use Goods in the ordinary course of its business.

9.4 If before title to Goods passes to Customer, Customer becomes subject to any of the events listed in Section 7.1, or M Squared USA reasonably believes that any such event is likely and notifies Customer accordingly, then, provided that Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy M Squared USA may have, M Squared USA may at any time require Customer to make such Goods available to M Squared USA and, if Customer fails to do so promptly, enter any premises of Customer or of any third party where Goods are stored in order to recover them.

9.5 The provisions of this Section 9 shall apply in so far as recognised by the jurisdiction in question and enforceable thereunder, to the intent that M Squared USA, until it has received payment in full, shall retain the maximum of rights and powers in relation to Goods against Customer and any other party who has dealing with Goods.

10. TERMS OF PAYMENT

10.1 The price of Goods shall be the price set out in the Order Form.

10.2 M Squared USA may, by giving notice to Customer at any time up to five (5) Business Days before delivery, increase the price of Goods to reflect any increase in the cost of Goods that is due to:

10.2.1 any request by Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

10.2.2 any delay caused by any instructions of Customer or failure of Customer to give M Squared USA adequate or accurate information or instructions.

10.3 Unless otherwise stated in the Order Form, the price of Goods is inclusive of the costs and charges of packaging, insurance and transport of Goods to the Delivery Address. Unless otherwise stated in the Order Form, the price of Goods is exclusive of installation which is on a Customer self-install basis.

10.4 The price of Goods is exclusive of amounts in respect of value added tax (“VAT”) or other applicable sales tax. Customer shall, on receipt of a valid VAT invoice from M Squared USA, pay to M Squared USA such additional amounts in respect of VAT as are chargeable on the supply of Goods.

10.5 Unless otherwise stated in the applicable Order Form, M Squared USA will invoice Customer for Goods as follows: (i) fifty percent (50%) immediately upon full execution of the Order Form, (ii) thirty percent (30%) immediately upon delivery to the Delivery Address, and (iii) twenty percent (20%) immediately upon completion of installation.

10.6 Customer shall pay all invoices in full and in cleared funds within three (3) Business Days of receipt thereof. Payment shall be made to the bank account set forth in writing by M Squared USA. Time of payment is of the essence.

10.7 If Customer fails to make any payment due to M Squared USA under the Agreement by the due date for payment (the “Due Date”), then Customer shall pay interest on the overdue amount at the rate of five percent (5%) per annum above Santander UK PIc’s base rate from time to time. Such interest shall accrue on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount.

10.8 Customer shall pay all amounts due under the Agreement in full without any deduction or withholding except as required by law and Customer shall not be entitled to assert any credit, set-off or counterclaim against M Squared USA in order to justify withholding payment of any such amount in whole or in part. M Squared USA may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by Customer against any amount payable by M Squared USA to Customer.

11. CONFIDENTIALITY

11.1 Customer shall keep in strict confidence any and all information disclosed to it by M Squared USA, its employees, agents, consultants or subcontractors, that is either marked “confidential” or should reasonably be understood to be confidential based on the nature of the information or the circumstances of its disclosure, including, without limitation, all technical or commercial know-how, specifications, inventions, processes or initiatives and any other concerning M Squared USA’s business or its products (collectively, “Confidential Information”).  Customer shall treat the Confidential Information with at least the same degree of care it treats its own confidential information, and in no event less than reasonable care.

11.2 Customer may disclose such information: 

11.2.1 to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out Customer’s obligations under the Agreement or in utilising Goods; and

11.2.2 as may be required by law, court order or any governmental or regulatory authority; provided, however, that Customer provides to M Squared USA reasonable advance written notice of such intended disclosure so as to allow M Squared USA to seek protective treatment of the Confidential Information.

11.3 Customer shall be responsible for ensuring that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such Confidential Information comply with this Section 11.

11.4 Customer acknowledges that violations of the covenants and obligations in this Section 11 may cause M Squared USA irreparable injury for which an adequate remedy at law may not be available. Therefore, M Squared USA shall be entitled to seek all remedies that may be available including immediate injunctive relief, in addition to whatever remedies may be available at law.

12. INTELLECTUAL PROPERTY RIGHTS

12.1 As between Customer and M Squared USA, all Intellectual Property Rights and all other proprietary rights in Goods (including all such rights in the Software and the Specifications) shall be owned by and automatically vest in M Squared USA.  To the extent any such Specifications do not automatically vest in M Squared USA, Customer hereby irrevocable assigns all rights in and to the Specifications to M Squared USA. M Squared USA hereby licenses such Intellectual Property Rights to Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable Customer to make reasonable use of Goods as such use is intended. If the Agreement is terminated for cause due to Customer’s default, this license will automatically terminate.

12.2 In respect of Software, in the event that there is any conflict between this Section 12 and the Software License, the terms of the Software License shall prevail solely with respect to the Software.

13. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY

13.1 This Section 13 sets out the entire liability of M Squared USA, and/or any of its affiliates (including any liability for the acts or omissions of its and their employees, agents, consultants and subcontractors) to Customer, including the event of a third party claim, in respect of:

13.1.1 any breach of the Agreement however arising;

13.1.2 any use or misuse made by Customer, or any employee, agent, consultant or subcontractor of Customer,  of Goods or any part of them; and 

13.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

13.2 EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, M SQUARED USA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING USE OF OR RELAIANCE ON GOODS OR ANY ASPECT THEREOF, AND GOODS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABILE” BASIS. THE WARRANTIES EXPRESSLY SET FORTH IN THE AGREEMENT ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND M SQUARED USA HEREBY DISCLAIMS, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY, INACCURACY OR NONCONFORMITY IN GOODS OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO ANY (I) IMPLIED WARRANTY OF MERCHANDABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (II) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; AND (III) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF M SQUARED USA (WHETHER ACTIVE, PASSIVE OR IMPUTED).

13.3 IN NO EVENT SHALL M SQUARED USA BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO INDIRECT, SPECIAL, INCIDENTIAL, PUNITIVE, COVER, RELIANCE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE GOODS OR ANY PORTION THEREOF OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, LOST SALES OR BUSINESS EXPENDITURES, INVESTMENTS OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS, OR LOSS OF ANY GOODWILL, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT M SQUARED USA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL M SQUARED USA AGGREGATE LIABILITY UNDER THE AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO M SQUARED USA UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

14. EXPORT CONTROL

14.1 Customer acknowledges that the Agreement is intended to pertain to the sale of goods and services within the United States.  Customer represents and warrants that it intends to maintain Goods within the United States.

14.2 Customer agrees that it will not export or re-export Goods or associated documentation in any form without obtaining (i) an applicable governmental or other required export licences and (ii) the written consent of M Squared USA. Failure to comply with this provision is a material breach of these Terms and Conditions.

15. EXPIRATION AND TERMINATION

15.1 Termination for Cause. Either party may terminate the Agreement if the other party breaches any material term of the Agreement (including the applicable Order) and the breaching party fails to cure such breach within thirty (30) days after receiving written notice thereof. Either party may terminate the Agreement if the other becomes insolvent or makes an assignment for the benefit of creditors, or a trustee or receiver is appointed for such other party or for a substantial part of its assets, or bankruptcy, reorganisation or insolvency proceedings shall be instituted by or against such other party, or an event occurs, or proceedings are taken, with respect to either party in any jurisdiction to which it is subject that has an effect equivalent or similar to any events mentioned in this Section 15. For the avoidance of doubt, termination of the Agreement under this Section 15 terminates the applicable Order and all licenses granted by M Squared USA to Customer as part of the Agreement.

15.2 Effect of Termination. On termination or expiration of the Agreement:

15.2.1 Customer shall, other than in respect of a breach caused solely by M Squared USA, immediately pay to M Squared USA all of M Squared USA’s outstanding unpaid invoices and interest and, in respect of Goods supplied (or the circumstances in Section 6.1 occurring) but for which no invoice has been submitted, M Squared USA may submit an invoice, which shall be payable immediately by Customer on receipt;

15.2.2 the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination; and

15.2.3 Sections which expressly or by implication have effect after termination shall continue in full force and effect, including the following Sections: Section 11 (Confidentiality), Section 12 (Intellectual Property Rights), Section 13 (Warranty Disclaimer; Limitation of Liability), Section 15.2.3, Section 16.3 (Governing law and Jurisdiction) and Section 16.6 (Notices).

16. GENERAL

16.1 Marketing. Unless otherwise provided in the applicable Order Form, Customer agrees that M Squared USA may use Customer’s name and logo (in a form Customer approves) to identify Customer as a customer on M Squared USA’s website or in marketing or publicity materials.  As such, Customer hereby grants to M Squared USA the limited, nonexclusive, non-sublicensable right to use Customer’s name and logo solely for the purposes set forth in this Section 16.1