1. LIMITED WARRANTY

All products are warranted by Ocular only to Buyer for resale or for use in business, against defects in workmanship or material under normal use for a period of one (1) year from receipt. Liquid Crystal Display materials with mechanical defects must be returned to Ocular at the following address: 12700 Park Central Drive, Suite 750, Dallas, Texas 75251, within thirty (30) days of receipt by customer. Touch Panel Display materials with mechanical defects must be returned to Ocular at the same address in Dallas, Texas, within one (1) year of receipt by customer. Removal of original protective film voids warranty on LCDs. A valid Return Merchandise Authorization (“R.M.A.”) number is required before the return of any product will be accepted. The issuance of a credit against returned products is at the sole discretion of Ocular and is based upon the results of Ocular’s material analysis of the returned products. DURING THE WARRANTY PERIOD ANY PRODUCT OR COMPONENT THEREOF WHICH IS DETERMINED BY OCULAR TO BE DEFECTIVE IN MATERIAL OR WORKMANSHIP AND TIMELY RETURNED TO OCULAR (OR OTHER AUTHORIZED SERVICE LOCATION, AS OCULAR DESIGNATES), SHIPPING COST PREPAID, WILL BE, AS THE BUYER’S SOLE AND EXCLUSIVE REMEDY, REPAIRED, REPLACED, OR PAYMENT REFUNDED OR CREDITED WITHOUT PRODUCT REPLACEMENT, AT OCULAR’S SOLE AND EXCLUSIVE OPTION.

2. WARRANTY DISCLAIMER AND EXCLUSION OF IMPLIED WARRANTIES

No warranty or affirmation of fact, expressed or implied, other than as set forth in the Limited Warranty statement above is made or authorized by Ocular. Ocular disclaims any liability for product defect claims that are due to Buyer’s product misuse, improper product selection, misapplication or system level design application by a Buyer or a third party. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, REPRESENTATIONS, OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE), NOT SPECIFIED HEREIN, RESPECTING THE GOODS OR PRODUCTS REFERENCED HEREUNDER, EXEPT AS EXPRESSLY SET FORTH IN THIS LIMITED WARRANTY. THIS WARRANTY IS THE ONLY WARRANTY MADE BY OCULAR FOR THE BENEFIT OF BUYER.

3. SHORTAGE AND NONCONFORMITY

Any claim of shortage or that the goods or products do not conform to the Buyer’s specifications in terms of quantity, order or model must be made in writing within ten (10) days after receipt by Buyer (or Buyer’s Agent) of the goods or products (as to which such claim is made).

4. WAIVER OF DEFECTS BY RETENTION OF POSSESSION OR USE, AND INDEMNITY

A retention by Buyer of the goods or products for more than 30 days from the date of receipt (or incorporation of the products into any goods or services of the Buyer, if prior to that time) constitutes a trial and acceptance, unless timely notice as set out above is given of a defect in the goods or products, and such retention shall constitute a conclusive admission by Buyer of the truth of all representations made by or for Ocular, and voids all contracts of warranty, whether express or implied. All warranties provided by Ocular shall be terminated and discharged if Buyer materially alters or modifies the products, or if Buyer incorporates the products into a new or finished product manufactured or otherwise assembled by Buyer, or its agent or designee. Further, Buyer agrees to indemnify Ocular without limitation for any claims arising from or connected to either Buyer’s modification of the products or Buyer’s incorporation of the products into a new or finished product manufactured or otherwise assembled by Buyer, its agent or designee.

5. MEDICAL APPLICATIONS

In connection any anticipated use of Products by Buyer in medical applications, Buyer acknowledges and agrees that:

1. Seller’s products are manufactured under normal industrial conditions, which may not satisfy the requirements applicable to products manufactured for certain medical applications. It is the sole responsibility of persons contemplating medical uses of Seller’s products to comply with all applicable laws, regulations, codes and standards, including but not limited to the U.S. Federal Food, Drug and Cosmetic Act and regulations of the Food and Drug Administration. Seller’s products have not been designed, manufactured, tested or qualified for use in certain medical applications (including life support systems) and Seller has not sought or received any rulings from the FDA or any other federal, state, or local government agency as to the safety, effectiveness or appropriateness of its products for such applications. Persons intending to evaluate or to use Seller’s products for medical purposes must rely on their own medical and legal judgment without any representation on Seller’s part.
2. Buyer will indemnify, defend, and hold harmless Seller and its officers, directors, employees, agents, and contractors from and against any and all losses, claims, damages, liabilities, and expenses (including reasonable attorneys fees) arising out of or based upon any bodily injury or property damage arising from Buyer’s incorporation of Products as part of any product made by Buyer for medical applications, including without limitation cardiac pacemakers, defibrillators, electrodes, leads, and programmers, and components therefor. Seller shall give Buyer written notice of any such claim and shall cooperate in the defense of such claim at Buyer’s expense.

6. NO DAMAGES

IN NO EVENT SHALL THE BUYER BE ENTITLED TO RECOVER FOR INCIDENTAL, CONSEQUENTIAL, OR SPECULATIVE DAMAGES (WHICH DAMAGES ARE EXPRESSLY DISCLAIMED), INCLUDING, BUT NOT LIMITED TO, LOSS OF CROPS, INCONVENIENCE, RENTAL OF REPLACEMENT EQUIPMENT, LOSS OF PROFITS, OR OTHER COMMERCIAL LOSS.

7. TERMS AND CONDITIONS OF PURCHASE

1. Any products or services Buyer purchases from Ocular by any means, including without limitations, electronic means, telephone, paper or any other form of transmission, are purchased subject to the terms and conditions set forth herein as well as any fully signed applicable purchase agreement and/or customer order acknowledgement currently in effect between Buyer and Ocular. Upon Buyer’s execution of the Agreement, Buyer confirms that the following terms and conditions apply to Buyer’s purchases from Ocular. TERMS AND CONDITIONS DIFFERENT FROM OR IN ADDITION TO THE TERMS AND CONDITIONS HEREIN, WHETHER CONTAINED IN ANY QUOTATION OR ACKNOWLEDGEMENT OR PROPOSAL BY BUYER, OR OTHERWISE, SHALL NOT BE BINDING ON OCULAR, WHETHER OR NOT THEY WOULD MATERIALLY ALTER THIS ORDER, AND OCULAR HEREBY OBJECTS THERETO, UNLESS SUCH TERMS AND CONDITIONS ARE CONTAINED IN A WRITTEN AGREEMENT EXECUTED BY DULY AUTHORIZED REPRESENTATIVES OF BOTH BUYER AND OCULAR (AT DALLAS, TEXAS, ONLY).
2. THIS AGREEMENT HAS BEEN MADE, ENTERED INTO, AND IS PERFORMABLE IN DALLAS COUNTY, IN THE STATE OF TEXAS, USA, AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, USA, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS PROVISIONS. BUYER HEREBY CONSENTS AND AGREES TO THE NON-EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND FEDERAL UNITED STATES DISTRICT COURTS SITTING IN DALLAS COUNTY, TEXAS, WITH RESPECT TO THE DETERMINATION OF ANY AND ALL DISPUTES ARISING FROM THE TRANSACTIONS CONTEMPLATED BY THIS ACKNOWLEDGMENT, WHETHER ARISING IN CONTRACT, BY TORT, OR OTHERWISE. The United Nations Convention on Contracts for the International Sale Of Goods shall not apply. The Buyer waives any defense of forum non conveniens. Buyer agrees and consents that Ocular may serve Buyer by registered or certified mail, which shall be sufficient to obtain jurisdiction.
3. The terms and conditions of this Agreement, and all customer lists, writings, discussions, negotiation, and pricing in connection with the transaction contemplated by this Agreement (including, without limitation, the fact that discussions and negotiations have been conducted by the Parties), shall remain strictly confidential and shall not be disclosed by either Party, without the prior written consent of the other Party, except that each Party shall be entitled to disclose the terms and conditions of this Agreement to such Party’s officers, directors, employees, attorneys, accountants, consultants, and other advisors performing services for such Party with respect to or affected by the transaction contemplated by this Agreement, in which case the disclosing Party shall use good faith efforts to limit disclosure to such third parties on a need-to-know basis. In connection with any such disclosure the Party making such disclosure shall request and use its commercially reasonable efforts to obtain confidential treatment of such information. If the receiving Party is required by a governmental body or court of law to disclose such confidential information, to the extent permitted by applicable law or as otherwise reasonably practicable, the receiving Party shall give the disclosing Party reasonable advance notice so that the disclosing Party may contest the disclosure or seek a protective order. Buyer shall not make any announcement, take or release any photographs (except for its internal operation purposes for manufacture and assembly of products), or release any Ocular information concerning this Quote or any part thereof or with respect to its business relationship with Ocular, to any third party, member of the public, press, business entity, or any official body except as required by applicable law, rule, injunction or administrative order, without Ocular’s prior written consent.
4. Buyer acknowledges and agrees that as between the Parties, Ocular is the sole and rightful owner of all right, title and interest in any intellectual property rights in and to the goods or services, and any changes, modifications, or corrections thereto. Buyer shall retain and preserve Ocular’s patent, copyright, trademark, and other proprietary notices and legends on the goods or in connection with the services, as applicable. Nothing in this Acknowledgment intends to transfer any such intellectual property rights to, or to vest any such intellectual property rights in, Buyer.

8. PRICING; PAYMENT

1. Unless otherwise provided elsewhere in this Agreement, prices are: (i) stated in U.S. dollars; (ii) subject to increases in the cost of materials that are beyond the scope of Ocular’s control; and (iii) FOB Ocular’s dock.
2. Unless otherwise provided elsewhere in this Agreement, payment will be net 30 days from date of the original delivery of any invoice to Buyer (or Buyer’s Agent) for any goods or products considered by this Agreement.
3. Buyer is solely responsible for all sovereign, state and local sales, use, excise, value added, privilege, payroll, occupational and any other taxes, fees, or duties applicable to the products or services. Unless prohibited by law, Ocular will separately indicate on its invoices any taxes imposed on the sale or delivery of products or services. Ocular shall collect and remit all taxes paid by Buyer to the appropriate taxing authority. Buyer agrees to pay the same to Ocular and/or to hold Buyer harmless therefrom. Ocular shall ensure that if any value-added or similar tax is applicable, that it is invoiced in accordance with the applicable rules so as to allow the Buyer to reclaim that value-added or similar tax from the appropriate government authority, where applicable. Neither party is responsible for taxes on the other party’s income or the income of the other party’s personnel or subcontractors. If the Buyer is required by government regulation to withhold taxes for which Ocular is responsible, Buyer will deduct such withholding tax from payment to Ocular and provide to Ocular a valid tax receipt in Ocular’s name. If Ocular is exempt from such withholding taxes as a result of a tax treaty or other regime, Ocular shall provide to Buyer a valid tax treaty residency certificate or other tax exemption certificate at a minimum of 30 days prior to payment being due.
4. Payment of all monies owed by Buyer to Ocular, of whatever kind or character, now owing or that may become owing according to the terms of this Agreement, shall be considered as the “Accounts Payable”.
5. Ocular reserves the right to adjust pricing in the event the exchange rate between USD and [RMB] fluctuates by more than 3% from the date of quotation.
6. To the extent Buyer has a credit balance with Ocular; Buyer agrees that any credit balances must be applied within one (1) year of the issuance of said credit balance. If not applied or requested within one (1) year of its issuance, any remaining credit balance shall expire without notice.

9. SALES, USE AND SIMILAR TAXES

Unless otherwise specifically agreed, the amount of any sales, use excise taxes, or any similar taxes for which Ocular is legally liable, either initially or through failure of payment by Purchaser, shall be added to the price quoted or to the purchase prices of the products.

10. PRIORITY OF PAYMENT

Time of payment is of the essence under this contract. Upon default in any of the terms of this Agreement, or failure to comply with any of the conditions hereof, or upon seizure of the property under execution of other legal process, or if Buyer becomes bankrupt or insolvent, or any petition for reorganization or for a state court receivership is filed against Buyer, or if the Buyer makes any assignment for the benefit of Buyer’s creditors or otherwise sells, encumbers or disposes of the merchandise, the full amount of the purchase price then remaining unpaid shall at once become due and payable at the option of Ocular. Ocular reserves the right to charge interest from the date due until paid at the greater of (i) two percent (2%) above the “prime rate” per annum of the JP Morgan Chase Bank, a New York banking corporation or its successor or such other “money center” as Ocular and Buyer may agree from time to time (“Chase”) in effect on said due date (or if the “prime rate” can be discontinued, the base reference rate then being used by Chase to define the rate of interest charged to commercial borrowers) or (ii) twelve percent (12%) per annum; provided, however, in no event shall the rate of interest hereunder exceed the maximum non-usurious rate of interest (hereinunder called the “Maximum Rate”) permitted by the applicable law of the State of Texas or the United States of America, and to the extent that the Maximum Rate is determined by reference to the laws of the State of Texas, the Maximum Rate shall be the weekly ceiling (as defined and described in Chapter 303 of the Texas Finance Code, as amended) at the applicable time in effect. All payments must be in U.S. dollars.

11. BACK BILLING

If the Buyer places a blanket order or executes an annual usage agreement with Ocular, and based on these agreements receives a quantity discount, and in the event that the total quantity commitment is not achieved; then the Buyer agrees to pay Ocular for the discounted portion of the price plus a ten (10) percent service charge.

12. SHIPMENT AS UNITY

Each shipment by Ocular shall be treated as a separate and distinct unit with respect, but only with respect to forwarding, terms of payment, and the making of claims by Buyer; however, if Buyer defaults in the payment of any obligation to Ocular or any installments thereof, under any agreement between Buyer and Ocular, of if Buyer refuses to accept any goods when tendered for delivery hereunder or under any other contract between Buyer and Ocular, Ocular may, on fifteen (15) days written notice to Buyer, without prejudice to Ocular’s other lawful remedies, either defer further performance until the defaulted payments are made in full, or make future deliveries for cash in advance only, or treat the entire contract or contracts with Buyer as breached by Buyer and pursue its remedies for breach.

13. REFUSAL OF DELIVERY OR ORDER CANCELLATION

If Buyer refuses to accept delivery of any goods tendered for delivery hereunder, then Ocular, without prejudice to Ocular’s other lawful remedies, may either store or cause such goods to be stored in a warehouse, for Buyer’s account at Buyer’s cost, risk and expense, or sell such goods (without notice to any Buyer) at public or private sale, and hold Buyer liable for any difference between (a) the contract price for such goods stipulated herein and (b) the price at which such goods are resold less the costs and expense of such resale including brokerage commission. Orders for custom-made products are non-cancellable and may not be returned, except and unless approved by Ocular in writing. If an order for custom made products is so approved to be cancelled by Ocular in writing, Ocular will be entitled to a cancellation charge, which includes, but is not limited to, finished goods cost, restocking charge, work in process cost, materials costs, and overhead cost plus anticipated profit.

14. GOODS IN TRANSIT

If prior to delivery, or while the merchandise is in transit, Buyer becomes bankrupt or insolvent, or any petition in bankruptcy or for reorganization, or for a state court receivership is filed against Buyer or if Buyer makes any assignment for the benefit of Buyer’s creditors or otherwise sells, encumbers or disposes of the merchandise, then Ocular may forthwith terminate this contract by giving written notice of such termination. Such termination shall not prejudice Ocular’s rights to any amounts then due under any contract.

15. MODIFICATIONS OF TERMS

Ocular’s acceptance of any order is subject to Buyer’s assent to all of the terms and conditions set forth in this Agreement, and Buyer’s assent to these terms and conditions shall be presumed from Buyer’s receipt of all or any part of the goods or products ordered. No addition or modification of any terms and conditions shall be binding upon Ocular unless agreed to in writing by Ocular corporate headquarters, Dallas, Texas. If a purchase order or other correspondence contains terms or conditions contrary to the terms and conditions contained in Ocular’s Acknowledgment, Ocular’s acceptance of any such purchase order or other correspondence shall not be construed as assent to any such additional terms and conditions, nor will that constitute a waiver by Ocular of any of the terms and conditions contained in this Agreement.

16. DELIVERY

Freight is not prepaid on any invoices unless otherwise stated on the quotation from Ocular to Buyer. Any extra charges incurred for additional services, such as customer’s carrier or special handling at the delivery destination, must be paid by the consignee. If any item is backordered on an order qualifying for freight prepayment, that item will be shipped prepaid. Expediting delivery requests are subject to air freight costs, special expediting fees and other reasonable costs and fees.

Title and risk of loss pass to Buyer F.O.B. Ocular’s dock. All of Buyer’s goods and products must be retrieved by Buyer as F.O.B. Ocular’s dock within fifteen (15) day(s) of Ocular’s notification to Buyer of such availability of any of Buyer’s goods and products considered by this Agreement. If Buyer does not promptly retrieve any such goods or products within such time period, Ocular may then charge to Buyer all reasonable and necessary storage costs and fees, such reasonable and necessary storage costs and fees to be not less than the usual reasonable and necessary storage costs and fees at local prevailing rates. If Buyer does not retrieve any such goods or products within thirty (30) days of Ocular’s original notification of Buyer’s goods or products being available for F.O.B. Ocular’s dock delivery, then Ocular may (but is not required to do so, and at Ocular’s sole discretion), consider Ocular’s duties and obligations as considered by this Agreement to be abated, or suspended, or terminated; and Ocular may then avail itself of its full legal remedies as considered by Section 19 of this Agreement concerning any such goods or products of Buyer.

17. EXPORT CONTROL

The Parties acknowledge that any products, software, and technical information (including, but not limited to, support services and training) provided by either Party under this Agreement are or may be subject to export/re-export laws and regulations of the United States and any use or transfer of such products, software and technical information must be authorized under those Laws. The Parties agree that they will not use, distribute, transfer or transmit the products, software or technical information (even if incorporated into other products) except in compliance with export/re-export Laws. If requested by either Party, the other Party agrees to sign all necessary export-related documents as may be required to comply with export/re-export Laws.

18. ENTIRE AGREEMENT

This Agreement, together with such documents as are expressly incorporated herein by reference (and no others), is intended by the Parties as a final expression of their agreement with respect to such items as are included herein, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealing between the Parties and no usage of the trade shall be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection. Should any court of competent jurisdiction declare any of the paragraphs of this Agreement to be invalid, such judgment shall not affect the remainder of such paragraphs or any other paragraph of this document.

19. SECURITY INTEREST

1. Ocular reserves a security interest in the goods or products to be shipped to the Buyer under the Agreement and in the proceeds of those goods or products, to secure the payment of the Accounts Payable. In addition to Ocular’s other rights hereunder, Ocular shall have all the rights of a Secured Party under the Uniform Commercial Code as adopted in Texas, as may be amended from time to time (or under the Uniform Commercial Code in force in any other State to the extent same is applicable law). Buyer hereby appoints Ocular its attorney-in-fact, coupled with an interest, empowering Ocular to execute, deliver and/or file all financing statements (or any amendments) that may be required by Ocular to establish and maintain the validity and priority of Ocular’s security interest in the Accounts Payable or the goods or products sold. Buyer hereby gives to Ocular an express contractual lien on and security interest in and to all goods or products considered by this Agreement, and also upon all proceeds of any insurance which may accrue to Buyer by reason of damage to or destruction of such goods or products. All exemption laws are hereby waived by Buyer. This lien and security interest may be foreclosed with or without Court proceedings, by public or private sale, and Ocular shall have the right to become purchaser, upon being the highest bidder at such sale. Buyer will not hereafter create a security interest in the goods or products sold, and any security interest purportedly granted in violation of this Agreement is void; and is a breach of this Agreement.
2. To the extent permitted by law, Buyer expressly waives any notice of sale or other disposition of the collateral and any other rights or remedies of a debtor or formalities prescribed by law relative to sale or disposition of the collateral or exercise of any other right or remedy of Ocular existing after non-payment of the accounts payable; and to the extent any such notice is required and cannot be waived, Buyer agrees that if such notice is mailed, postage prepaid to Buyer at the address designated at the beginning of this Agreement (or if no address is so designated, at Buyer’s most recent address as shown by the records of Ocular) at least fifteen (15) days before the time of any public sale or disposition, or the date after which the collateral will be sold or disposed of by private sale, such notice shall be deemed reasonable and shall fully satisfy any requirement for giving of such notice.
3. Ocular shall have the right, without the consent or joinder of Buyer, to execute and file with any governmental authority such financing statements, financing statement amendments, and continuation statements as may, in the sole discretion of Ocular, be necessary or advisable to maintain, perfect, or otherwise evidence the security interest of Ocular in and to the Collateral. Buyer, as “Debtor” (as referred to in this Section of the Agreement) hereby expressly authorizes Ocular, as a Secured Party to file any such financing statements without the signature of Buyer to the extent permitted by applicable law.

20. WAIVER OF TRIAL BY JURY

BUYER, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY KNOWINGLY, INTENTIONALLY, IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FOREGOES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF OR IN ANY WAY RELATING TO THIS ACKNOWLEDGMENT OR ANY CONDUCT, ACT OR OMISSION OF OCULAR, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH OCULAR IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.

21. COLLECTION

If the Accounts Payable shall be collected by legal proceedings, whether through a probate or bankruptcy court or otherwise, or shall be placed in the hands of an attorney for collection, Buyer agrees to pay Ocular’s attorney’s fees and collection fees and expenses, and such fees and expenses shall be a part of the Accounts Payable.

22. DTPA NOTICE

1. Buyer acknowledges and agrees, in its own behalf and on the behalf of any assigns and successors of Buyer hereafter, that the Texas Deceptive Trade Practices Act, Chapter 17, of the Texas Business and Commerce Code (the “DTPA”) is not applicable to this Agreement. Accordingly, Buyer’s rights and remedies with respect to this Agreement and with respect to all acts and practices of Ocular, past, present or future, in connection with this Agreement shall be governed by legal principals other than the DTPA. The provisions of this section shall survive the execution of this Agreement. Alternatively,
2. WAIVER OF CONSUMER RIGHTS. BUYER WAIVES ITS RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., BUSINESS AND COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION, BUYER VOLUNTARILY CONSENTS TO THIS WAIVER.

23. MEDIATION AND BINDING ARBITRATION

1. Mediation. If any dispute (the “Dispute”) arises between any of the requiring parties to this Agreement, then any party may give written notice to the other party requiring all involved parties to attempt to resolve the Dispute by mediation. Except in those circumstances where a party reasonably believes that an applicable statute of limitations period is about to expire, or a party requires injunctive or equitable relief, the parties are obligated to use this mediation procedure before initiating arbitration. Within seven (7) days after receipt of the mediation notice, each party must deliver a written designation to all other parties stating the names of one or more individuals with authority to resolve the Dispute on behalf of such party. Within fourteen (14) days after receipt of the mediation notice, the parties shall make a good faith effort to select a qualified mediation to any state or federal judge to appoint a mediator. In consultation with the mediator, the parties shall promptly designate a mutually convenient time and place of the mediation that is not later than thirty (30) days after the date the mediator is selected. In the mediation, each party must be represented by persons with authority and discretion to negotiate a resolution of the Dispute, and may be represented by counsel. The mediation will be governed by applicable provisions of Chapter 154 of the Texas Civil Practice and Remedies Code, and such other rules as mediator may prescribe. The fees and expenses of the mediator will be paid equally and shared equally by all parties included in this Dispute.
2. Binding Arbitration. If the Parties are unable to resolve any Dispute by mediation, then the Parties shall submit the Dispute to a binding arbitration. The dispute will be decided by arbitration in accordance with the applicable arbitration statute and any rules selected by the arbitrator. After an unsuccessful mediation, any party may initiate the arbitration procedure by delivering a written notice of demand for arbitration to the other parties. The arbitration shall be conducted in Dallas, Texas by one neutral arbitrator chosen by the American Arbitration Association (“AAA”) according to its Commercial Arbitration Rules if the amount of the claim is one million dollars ($1,000,000.00) or less and by three neutral arbitrators chosen by AAA in the same manner if the claim is more than one million dollars ($1,000,000.00). Neither the Parties nor the arbitrator(s) may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all the parties. All fees and expenses of the arbitration shall be borne by the parties equally. However, each party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proofs. The prevailing party, according to the arbitrator(s) shall be entitled to an award of reasonable attorney’s fees and arbitration fees and administrative expenses. This agreement to arbitrate shall survive the termination or repudiation of this Agreement.

24. PRIORITY OF DOCUMENTS

Notwithstanding any terms or conditions contained in any of Buyer’s invoices, purchase orders, quotes for goods or products, or other similar documents, the terms and conditions of this Agreement shall have control and priority in the event of any controversy, disagreement, dispute or difference of interpretation.

25. NO LICENSE

Neither this Agreement nor any purchase of Products hereunder shall be construed to confer upon Buyer or its customers any license under any patent or other proprietary rights of Seller, except the right to use such goods for the purposes for which they are sold.

26. ASSIGNMENT

Buyer shall not assign any order or interest herein without the prior written consent of Ocular. Any actual or attempted assignment without Ocular’s prior written consent shall entitle Ocular to cancel such order upon notice to Buyer.

27. OTHER TERMS

The failure of Ocular to enforce at any time or for any period of time any of the provisions hereof shall not be construed to be a waiver of such provisions nor the right of Buyer thereafter to enforce each and every such provision. Any check or approval of drawings by Buyer will be for Ocular’s convenience and will not relieve Buyer of its responsibility to meet all requirements of this Quote. No claim or right arising out of a breach of this Quote can be discharged in whole or part by a waiver of the claim or right unless the waiver is supported by consideration and is in writing signed by the aggrieved party.

28. PERIOD OF LIMITATION OF ACTION

An action by Buyer against Ocular for breach of any duty or obligation related to this Agreement must be commenced within two (2) years and one (1) day after the cause of action has accrued.

29. RELATIONSHIP OF THE PARTIES

The relationship between Ocular and Buyer shall be that of Seller and Buyer, only. Ocular has no fiduciary relationship, special relationship with or duty, joint venture, partnership, or limited partnership with Buyer, and none is created hereby or may be inferred from any course of dealing or conduct or act of admission of Ocular.