APAC Terms of Sale (Asia Pacific Region)

General Conditions of Sale

Unless otherwise expressly agreed in writing, all sales are subject to the following terms and conditions:

GENERAL PROVISIONS

Dickson Unigage Sdn. Bhd. (the “Seller”) hereby offers for sale to the buyer named on the face hereof (the “Buyer”) for the products listed on the face hereof (the “Products”) on the express condition that the Buyer agrees and submits to the terms and conditions of sale set forth herein. Any provisions contained in any document issued by the Buyer are expressly rejected and this document shall be construed as a counteroffer and shall not constitute acceptance of the Buyer’s document. The Buyer’s receipt of Products or the Seller’s commencement of the services provided hereunder will constitute the Buyer’s acceptance of this Agreement (the “Agreement”). No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless they are laid down in writing and signed by the Seller and Buyer. The Seller’s failure to object to terms contained in any subsequent communication from the Buyer will not be a waiver or modification of the terms set forth herein. All orders are subject to the written acceptance and signature of an authorized representative of the Seller.

PRICES

All prices published by the Seller may be changed at any time. All prices quoted by the Seller are valid for sixty (60) days, unless otherwise stated in writing. All prices of Products will be those specified by the Seller or, if no price has been specified or quoted, will be the Seller’s price in force at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, special packaging, raw materials, production costs, shipping arrangements or other terms or conditions which are not included in the Seller’s original quote.

TAXES AND OTHER CHARGES

The Product prices exclude Sales and Service Tax (“SST”) and other taxes or duties relating to the sale, delivery cost, transport price, customs duties or similar charges. If the Buyer invokes any tax or customs exemptions, it must provide a certificate or official signed letter of exemption issued by the competent authority.

PAYMENT TERMS

The Seller may invoice the Buyer upon shipment for the price and all other charges payable by the Buyer. Unless otherwise agreed, payment shall be due with a deposit of 30% upon ordering for any first order, and the balance thirty (30) days from the invoice date. Account customers benefit from a payment due thirty (30) days from the invoice date.

In case of non-payment by the Buyer on the due date, the Buyer shall pay the Seller late penalties equal to at least three times the legal interest rate, without being less than 8%.

DELIVERY, CANCELLATION OR MODIFICATION BY THE BUYER

Unless otherwise agreed, the products will be delivered to the address provided by the Buyer in the order or order confirmation. The Seller will be entitled, at its option, to make partial shipments of products and charge each shipment separately. All delivery dates are only approximate, and the Seller shall not be liable for any late delivery or non-delivery for reasons beyond the reasonable control of the Seller. Orders can only be modified or cancelled with the Seller’s written agreement and with the payment of cancellation costs by the Seller (flat rate of 15% of the initial price), if they are applicable. Products can only be returned with the Seller’s prior written consent.

When the delivery requires the intervention of a technician employed by the Seller, the Buyer undertakes to complete the document of prerequisites handed over to it and to comply, without reservation, with the general conditions of intervention on site stipulated therein. Upon request, the Buyer can receive a copy of the document of prerequisites at any time.

RETENTION OF TITLE

The transfer of ownership of Products is subject to full payment of the price by the Buyer, in principal and accessories, even when payment extensions are granted. By express agreement, the Seller may exercise the rights it holds under this retention of title clause, for any of its claims, on all Products which are in the Buyer’s possession, which are contractually deemed to be those which are unpaid, and the Seller may take them back or claim them as compensation for all its unpaid invoices, without prejudice to its right to cancel any sales in progress. The Buyer shall not give the products as a pledge or transfer them as a guarantee. In the event of resale of the Products, the Buyer undertakes to immediately pay to the Seller any portion of the purchase price remaining due. This clause does not prevent the risk of loss of the Products being transferred to the Buyer upon delivery. It is understood that the ownership of any software incorporated in the Products or which is part of them shall always be retained by the Seller or its license supplier(s), as applicable.

WARRANTY

The Seller warrants that the Products will operate or perform substantially in conformance with the Seller’s published specifications and be free from material and workmanship defects, when they are used normally, correctly and in accordance with their intended use, by properly trained staff, for the period indicated in the published specifications or package inserts. If a period is not specified, the warranty period shall be one (1) year from the date of shipment to the Buyer. During the Warranty Period, the Seller undertakes to repair or replace defective Products, at the Seller’s option, provided that:

The Buyer promptly notifies the Seller in writing upon the discovery of any defect, which notice shall include the product model and serial number (if applicable) and details of the warranty claim; and

The Seller obtains a Return Material Authorization (“RMA”) from the Buyer, which may include biohazard decontamination procedures and other product-specific handling instructions, then, if applicable, the Buyer may return the defective Products to the Seller with all costs prepaid by Buyer. Consumable products are specifically excluded from this warranty.

The Seller shall have no obligation under this warranty for damage resulting from:

Normal wear; Accidents, disasters or force majeure events; Misuse, fault or negligence of the Buyer; Use of the Products in a manner for which they were not designed; Causes external to the Products such as, but not limited to, power failure or electrical power surges; Improper storage and handling of the Products; Use of the Products in combination with unauthorized equipment, an environment or software; or Any installation, maintenance, repair, servicing or modification, carried out by any person other than the Seller or its designated representative, or any use whatsoever of spare parts not supplied by the Seller or its designated representative.

The remedies under this warranty will be the sole remedy of the Buyer in case of a defective Product.

The Seller disclaims (to the extent permitted by law) any other warranty, whether express or implied, oral or written, concerning the Products, including without limitation all implied warranties of merchantability or fitness for any particular purpose.

COMPENSATION

By the Seller. The Seller undertakes to compensate the Buyer, and/or employees, for all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including reasonable attorneys’ fees) (“Compensated Elements”) for:

Injury or death of persons or damage to property to the extent that they are caused by the gross negligence or willful misconduct of the Seller, its employees, agents, representatives or services providers in the framework of the sale; and

Claims according to which a Product infringes any valid intellectual property right of a third party, it being understood, however, that the Seller will have no liability under this Section to the extent that said Compensated Elements have been caused by:

The negligence or intentional fault of the Buyer, its employees, agents, representatives or service providers; Any third party; Improper storage or handling of the Products or use by unqualified personnel; Use of a Product in conjunction with equipment, an environment or software not supplied by the Seller if the Product itself does not infringe any third-party rights; The Seller’s compliance with the Buyer’s designs, specifications or instructions; Use of the Product in an application or environment for which it was not designed; or Modifications of the Product by anyone other than the Seller without the Seller’s prior written approval.

The Buyer shall provide the Seller with prompt written notice of any third-party claim covered by the Seller’s compensation obligations hereunder. The Seller will be entitled to assume exclusive control of the defense against such claim or, at the option of the Seller, to settle with the third-party author of the claim. The Buyer agrees to cooperate reasonably with the Seller in connection with the performance by Seller of its obligations under this Section.

By the Buyer. The Buyer shall compensate, defend with competent and experienced attorneys and release the Seller, its parent company, subsidiaries, affiliates and divisions, as well as their respective departments, directors, shareholders and employees from any liability and hold them harmless from any damage, liability, actions, causes of action, suits, claims, demands, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses and legal costs) to the extent resulting from or relating to:

The negligence or intentional fault of the Buyer, its agents, employees, representatives or service providers; Improper storage or handling of the Products or use by unqualified personnel; Use of a Product in conjunction with equipment or software not supplied by the Seller if the Product itself does not infringe any third-party rights; Use of the Products for any purpose for which they are not designed or by a person without the necessary qualifications; The Seller’s compliance with the designs, specifications or instructions provided by the Seller to the Buyer; Use of a Product in an application or environment for which it was not designed; Modifications of a Product by anyone other than the Seller without the Seller’s prior written approval; Non-compliance by the Buyer with safety rules or non-communication to the Seller’s employees having resulted in material damage and/or physical injury for the Seller’s employees; or Breach of the obligations laid down below in Articles 9 and 12.

SOFTWARE

With respect to any software products incorporated in or forming a part of the Products hereunder, the Seller and Buyer agree that such software products are licensed and not sold, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “Buyer” or similar or derivative words are understood and agreed to mean “licensee”. Notwithstanding anything to the contrary contained herein, the Seller or its licensor, as appropriate, retain all rights on the software products provided hereunder. The Seller hereby grants the Buyer a paid, non-exclusive, non-transferable license, without the authority to sub-license, to use the software provided hereunder. The Buyer agrees to maintain the confidentiality of the software products and their documentation, and not to sell, transfer, license, loan or otherwise make them available in any form whatsoever to third parties. The Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without the Seller’s prior written consent. The Seller will be entitled to terminate this license if the Buyer fails to comply with any term or condition herein. The Buyer agrees, upon termination of this license, to immediately return to the Seller all software products and related documentation provided hereunder, as well as all their copies. Some software products supplied by the Seller may belong to one or more third parties and will be supplied subject to the license conditions of these third parties. Accordingly, the Seller and the Buyer agree that said third parties shall retain ownership of said software products. The terms of warranty and compensation set forth herein shall not apply to software products belonging to third parties and provided hereunder.

LIMITATION OF LIABILITY

Notwithstanding any stipulation to the contrary contained herein, the liability of the Seller according to these terms and conditions (whether for breach of contract, tort, compensation or another reasons, excluding the liability of the Seller for non-compliance with the warranty) (in which case the sole remedy will be according to the provisions of Article 7 above) shall not exceed an amount equal to the total purchase price paid by the Buyer to the Seller for the Product(s) giving rise to said liability.

Notwithstanding any stipulation to the contrary contained herein, the Seller shall in no event be liable for any indirect, special, consequential or incidental damage whatsoever (including, without limitation, damages for loss of use of facilities or equipment, loss of income, loss of data, loss of profits or loss of goodwill), regardless of whether the Seller has been informed of the possibility of such damages or has been negligent.

The Buyer is responsible for the collection and disposal of waste electrical and electronic equipment (“WEEE”). When it is expressly agreed in the sale contract, the organization of the removal and treatment of WEEE may be entrusted to the Seller. In this case, the Buyer undertakes to notify the Seller at the end of the life of its equipment, to decontaminate it and deposit it, accompanied by the certificate of non-contamination, at the collection point which will be indicated.

The Buyer will finance the collection and treatment of the equipment.

EXPORT RESTRICTIONS

The Buyer acknowledges that each Product and any related software and technology, including technical information supplied by Seller or contained in documents (collectively “Items”), is subject to the applicable export controls. The Buyer shall comply with all laws, regulations, treaties and agreements relating to the export, re-export, and import of any Item.

SPECIFICATIONS FOR THE METROLOGY LABORATORY

The Seller undertakes not to disclose to third parties, without prior agreement, any information concerning the work entrusted to it with the exception of audits where data can be consulted on site. The staff of the metrology laboratory is contractually bound by professional secrecy. The laboratory is responsible to the customer for the work carried out by the subcontractor, except when the customer has specified the subcontractor that must be used. The laboratory is responsible for objects subject to the measures only when they are returned to the customer after the measures and not during their delivery to the laboratory. The lead times indicated on the quote are provided for information purposes only. Unless otherwise stated, they begin on the start date of the service. The exceeding of time limits shall not give rise to any compensation. Any delay by the customer in complying with its contractual obligations shall extend the lead time accordingly.

The Seller’s complaint handling procedure is available upon request.

MISCELLANEOUS

The Buyer cannot assign its rights or claims hereunder without the Seller’s prior written consent. Any action arising out of this Agreement shall be brought within a period of one (1) year from the date on which the cause of the action arose.

If one or more provisions contained herein are considered by a competent court as invalid, illegal or unenforceable to any extent whatsoever, the validity, legality and enforceability of the other provisions hereof shall remain in full force and effect, unless such revision substantially modifies the agreement of the parties. The Seller’s failure to enforce, or the Seller’s waiver to invoke a breach of any provision of this Agreement shall not constitute a waiver to invoke any other breach or of such provision.

The Buyer agrees that all pricing, discounts and technical information that the Seller provides to the Buyer are the confidential and proprietary information of the Seller. The Buyer undertakes:

To maintain the confidentiality of such information and not to disclose such information to any third party; and

Only to use such information for the Buyer’s internal purposes and with respect to the Products supplied hereunder.

Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by registered mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other.

ARBITRATION AND GOVERNING LAW

All disputes arising out of or related to this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with such rules, provided that such arbitrator shall speak, read, and write English fluently, be then qualified to practice law in New York and have not less than ten (10) years’ experience in international commercial contracts and negotiations. The place of arbitration shall be Sydney, Australia. The arbitration shall be conducted in English. The arbitrator shall award to the prevailing party, if any, as determined by the arbitrator, its reasonable attorneys’ fees and costs, including the costs of the arbitration. Judgment on any arbitral award may be entered in any court having jurisdiction. The parties shall keep confidential: (a) the fact that any arbitration occurred; (b) any awards awarded in the arbitration; (c) all materials used, or created for use in the arbitration; and (d) all other documents produced by another party in the arbitration and not otherwise in the public domain, except, with respect to each of the foregoing, to the extent that disclosure may be legally required (including to protect or pursue a legal right) or necessary to enforce or challenge an arbitration award before a court or other judicial authority.

This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, USA, without regard to conflicts-of-law principles.