TERMS AND CONDITIONS OF SALE

Version 17.2 (170328)

1. TERMS AND CONDITIONS

1.1 General. These Terms and Conditions shall apply to all orders for the supply of Goods placed with M Squared by Customer.  

1.2 These Terms and Conditions and the applicable Order Acknowledgement and any Software Licence contain all the terms and conditions applicable to the supply of Goods (collectively, the Contract).

1.3 Customer must refer to a copy of the applicable Order Acknowledgement to determine the applicable conditions of the Contract and any special terms agreed between M Squared and Customer, which may vary these Terms and Conditions. If Customer does not receive any other document generated and/or executed by M Squared referencing the Contract, an M Squared written acceptance of order referencing these Terms and Conditions and issued in response to Customer’s purchase order (or such other request for the provision of Goods provided by Customer) shall be M Squared’s acceptance of the Contract. Additional or different terms on Customer’s purchase order shall not apply.

2. DEFINITIONS AND INTERPRETATION

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

Business Day - a day (other than a Saturday, Sunday or public holiday) when banks in Edinburgh are open for business;

Customer - the person or firm who purchases Goods from M Squared or from any person who is deemed to be M Squared’s agent; 

Force Majeure Event - the meaning given in clause 16.5;

Goods - the specific goods (or any part of them) set out in an Order;

Intellectual Property Rights - all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;

M Squared - M-Squared Lasers Limited registered in Scotland with company number SC243330 with its registered office at Venture Building, West of Scotland Science Park, Glasgow, G20 0SP, Scotland, United Kingdom, together with any subsidiary and associated companies except for M Squared Lasers, Inc.;

Order - Customer’s order for supply of Goods, as set out in Customer’s purchase order form, Customer’s written acceptance of M Squared’s quotation, or overleaf, as the case may be;

Order Acknowledgement - a document issued by M Squared (or its authorised agent) which references these Terms and Conditions and identifies Goods being supplied to Customer including, without limitation, charges payable and payment terms for such Goods, together with any special terms which vary these Terms and Conditions;

Software - M Squared’s proprietary software embedded within Goods or part thereof;

Software Licence - M Squared’s click through software terms and conditions relating to the Software; and

Specification - any specification for 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 agreed in writing by Customer and M Squared.

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 CONTRACT

3.1 These Terms and Conditions apply to the Contract 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. In the event of any conflict between these Terms and Conditions and the terms and conditions, if any, in any communication from Customer, these Terms and Conditions shall prevail.

3.2 The Order constitutes an offer by Customer to purchase Goods in accordance with these Terms and Conditions. Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.

3.3 The Order shall only be deemed to be accepted when M Squared issues the applicable Order Acknowledgement, at which point the Contract shall come into existence.

3.4 Any samples, drawings, descriptive matter, or advertising produced by M Squared and any descriptions or illustrations contained in M Squared’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of Goods described in them. They shall not form part of the Contract or have any contractual force. 

3.5 A quotation for Goods given by M Squared shall not constitute an offer. Unless the parties agree otherwise, a quotation shall only be valid for a period of 30 days from its date of issue. All quotations given by M Squared are based on the cost of production of Goods current on the date of quotation and are, in accordance with clause 10.2, subject to adjustments by M Squared on or after acceptance by M Squared of Customer’s order.

4. CREDIT APPROVAL

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

5. DELIVERY

5.1 M Squared 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 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 requires Customer to return any packaging materials to M Squared, 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 shall reasonably request. Returns of packaging materials shall be at the M Squared’s expense.

5.2 M Squared shall deliver Goods to the location set out in the Order or such other location as the parties may agree (Delivery Address) at any time after M Squared notifies Customer that Goods are ready.

5.3 Delivery of Goods shall be completed on 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 shall not be liable for any delay in delivery of Goods that is caused by a Force Majeure Event or Customer’s failure to provide M Squared with adequate delivery instructions or any other instructions that are relevant to the supply of Goods. 

5.5 If M Squared fails to deliver Goods, its liability shall be limited to the costs and expenses incurred by Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of Goods.

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

5.6.1 delivery of Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which M Squared notified Customer that Goods were ready; and

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

5.7 If 10 Business Days after the day on which M Squared notified Customer that Goods were ready for delivery Customer has not taken delivery of them, M Squared may resell or otherwise dispose of part or all of Goods and, after deducting reasonable storage and selling costs, account to Customer for any excess over the price of Goods or charge Customer for any shortfall below the price of Goods.

5.8 M Squared may deliver Goods by instalments. Such Goods which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle Customer to cancel any other instalment. 

6. CANCELLATION

6.1 Unless previously agreed to by M Squared in writing, M Squared will not accept the cancellation of an Order nor the return of Goods for credit. Where such cancellation is agreed, M Squared 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’s opinion Customer’s capability to adequately fulfil its obligations under the Contract 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 clause 7, or M Squared 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, M Squared may cancel or suspend all further deliveries under the Contract or under any other contract between Customer and M Squared without incurring any liability to Customer, and all outstanding sums in respect of Goods delivered to Customer shall become immediately due.

8. QUALITY

8.1 Unless otherwise specified in the Contract, M Squared 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 (Warranty Period), Goods shall:

8.1.1 conform in all material respects with their description and any applicable Specification;

8.1.2 be free from material defects in design, material and workmanship;

8.1.3 be of satisfactory quality; and

8.1.4 be fit for any purpose held out by M Squared.

8.2 Subject to clause 8.3, if:

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

8.2.2 M Squared is given a reasonable opportunity of examining such Goods; and 

8.2.3 Customer (if asked to do so by M Squared) returns such Goods to M Squared’s place of business at M Squared’s cost, MSquared shall, at its option, repair or replace the defective Goods, or refund the price of defective Goods in full.

8.3 M Squared shall not be liable for Goods’ failure to comply with the warranty set out in clause 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 clause 8.2; 

8.3.2 the defect arises because Customer failed to follow M Squared’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of Goods or (if there are none) good trade practice regarding the same;  

8.3.3 the defect arises as a result of M Squared 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;  

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 provided in this clause 8, M Squared shall have no liability to Customer in respect of Goods’ failure to comply with the warranty set out in clause 8.1.

8.5 The express warranties made by M Squared in clause 8.1 are 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 repaired or replacement Goods supplied by M Squared.

9. RISK AND TITLE

9.1 The risk in Goods shall pass to Customer on completion of delivery.

9.2 Title to Goods shall not pass to Customer until M Squared 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;  

9.3.2 store Goods separately from all other goods held by Customer so that they remain readily identifiable as M Squared’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 immediately if it becomes subject to any of the events listed in clause 7.1; and

9.3.6 give M Squared such information relating to Goods as M Squared 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 clause 7.1, or M Squared reasonably believes that any such event is about to happen 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 may have, M Squared may at any time require Customer to deliver up Goods 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 clause 9 shall apply in so far as recognised by the jurisdiction in question and enforceable thereunder, to the intent that M Squared, 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, or, if no price is quoted, the price set out in M Squared’s published price list in force as at the date of delivery. 

10.2 M Squared may, by giving notice to Customer at any time up to 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 factor beyond M Squared’s control (including Force Majeure Event, foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

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

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

10.3 The price of Goods is inclusive of the costs and charges of packaging, insurance and transport of Goods.

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, pay to M Squared such additional amounts in respect of VAT as are chargeable on the supply of Goods.

10.5 Unless otherwise stated in the applicable Order Acknowledgement, M Squared will invoice Customer for Goods (i) 50% on order, (ii) 30% on delivery to the Delivery Address, and (iii) 20% on installation. 

10.6 Customer shall pay all invoices in full and in cleared funds net zero. Payment shall be made to the bank account nominated in writing by M Squared. Time of payment is of the essence. 

10.7 If Customer fails to make any payment due to M Squared under the Contract by the due date for payment (Due Date), then Customer shall pay interest on the overdue amount at the rate of 5% per annum above Barclays Bank Plc’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 Contract 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 in order to justify withholding payment of any such amount in whole or in part. M Squared 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 to Customer.

11. CONFIDENTIALITY

11.1 Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to Customer by M Squared, its employees, agents, consultants or subcontractors and any other confidential information concerning M Squared’s business or its products which Customer may obtain. 

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 Contract or in utilising Goods; and 

11.2.2 as may be required by law, court order or any governmental or regulatory authority.

11.3 Customer shall use its best endeavours to ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause 11. 

11.4 Customer acknowledges that violations of the covenants and obligations in this clause 11 may cause M Squared irreparable injury for which an adequate remedy at law may not be available. Therefore, M Squared 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, all Intellectual Property Rights and all other rights in Goods (including the Specification) shall be owned by and automatically vest in M Squared. M Squared 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. If the Contract is terminated for cause due to Customer’s default, this licence will automatically terminate.

12.2 In respect of Software, in the event that there is any conflict between this clause 12 and the Software Licence, the terms of the Software Licence shall prevail. 

13. LIMITATION OF LIABILITY

13.1 This clause 13 sets out the entire financial liability of M Squared (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to Customer in respect of:

13.1.1 any breach of the Contract however arising; 

13.1.2 any use made by 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 Contract.

13.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

13.3 Nothing in the Contract limits or excludes the liability of M Squared:

13.3.1 for death or personal injury resulting from its negligence; 

13.3.2 fraud or fraudulent misrepresentation; or

13.3.3 any matter in respect of which it would be unlawful for M Squared to exclude or restrict liability.

13.4 Subject to clause 13.3:

13.4.1 M Squared shall not under any circumstances whatever be liable for:

    (i) loss of profits;
    (ii) loss of business;
    (iii) depletion of goodwill and/or similar losses;
    (iv) loss of anticipated savings;
    (v) loss of goods;
    (vi) loss of contract;
    (vii) loss of use;
    (viii) loss of corruption of data or information; or
    (ix) any special, indirect, consequential or pure economic loss, costs,
    damages, charges or expenses; and

13.4.2 M Squared’s total liability in contract, delict/tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall in all circumstances not exceed 135% of the price paid for Goods.

14. EXPORT CONTROL

14.1 To the extent that Goods are intended to be supplied and exported outside the European Community from within the European Community, Goods will only be supplied and exported by M Squared to the intent that M Squared can obtain a valid export licence in respect thereto and furthermore meet any applicable export control conditions in respect thereto.

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. 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 will have the right to terminate the Contract if the other party breaches any material term of the Contract (including the applicable Order Acknowledgement) and if such breach is capable of cure, the breaching party fails to cure such breach within 30 days after receiving written notice thereof. Either party will have the right to terminate the Contract 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 clause 15. For the avoidance of doubt, termination of the Contract under this clause 15 terminates the applicable Order Acknowledgement and all licenses granted by M Squared to Customer as part of the Contract.

15.2 Effect of Termination. On termination or expiration of the Contract for any reason other than breach caused solely by M Squared: 

15.2.1 Customer shall immediately pay to M Squared all of M Squared’s outstanding unpaid invoices and interest and, in respect of Goods supplied (or the circumstances in clause 6.1 occurring) but for which no invoice has been submitted, M Squared 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 Contract which existed at or before the date of termination; and 

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

16. GENERAL

16.1 Marketing. Unless otherwise provided in the applicable Order Acknowledgement, Customer agrees that M Squared may use Customer’s name and logo (in a form Customer approves) to identify Customer as a customer on M Squared’s website or in marketing or publicity materials. 

16.2 Transfer of Rights and Obligations. Customer shall not, without the prior written consent of M Squared, assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights or obligations under the Contract. M Squared may at any time assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights or obligations under the Contract. Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.

16.3 Governing Law and Jurisdiction. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the Law of Scotland. The parties irrevocably agree that the courts of Scotland shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims). 

16.4 Nonexclusive Remedy. Except as expressly set forth in the Contract, the exercise by either party of any of its remedies under the Contract will be without prejudice to its other remedies under the Contract or otherwise.

16.5 Force Majeure. Neither party will be responsible for any failure or delay in its performance under the Contract (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labour disputes, strikes, lockouts, shortages of or inability to obtain labour, energy, raw materials or supplies, war, terrorism, riot, natural disasters or governmental action.

16.6 Notices. All notices required or permitted under the Contract will be in writing. Any notice shall be deemed to have been duly received: (a) if delivered personally, when left at the address; (b) if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or (c) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. Notices relating to the Contract will be sent to the primary corporate addresses set forth in the applicable Order Acknowledgement or to such other address as Customer or M Squared may notify the other party in writing.

16.7 Entire Agreement.The Contract, including the applicable Order Acknowledgement referencing these Terms and Conditions, constitutes the complete and exclusive understanding and agreement between Customer and M Squared regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Each party acknowledges that, in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Contract or not) (Representation) other than as expressly set out in the Contract. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract. Nothing in this clause 16.7 shall limit or exclude any liability for fraud.

16.8 Modification; Severability. Failure to enforce any provision of the Contract will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of the Contract will be effective only if in writing and signed by an officer of Customer and an authorised representative of M Squared. If for any reason a court of competent jurisdiction finds any provision of the Contract invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of the Contract will remain in full force and effect. 

16.9 No Partnership or Agency. Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).