1. PRODUCTS AND
SERVICES These terms and conditions govern
the sale of all products ("Products") and/or services and service
deliverables (collectively referred to as "Services") by LumaLaser Inc. ("Seller") and apply notwithstanding any conflicting,
contrary or additional terms and conditions in any purchase order or other
document or communication ("Purchase Order") from buyer. These terms and
conditions may only be waived or modified in a written agreement signed by
an authorized representative of Seller. Neither Seller's acknowledgment of
a Purchase Order nor Seller's failure to object to conflicting, contrary
or additional terms and conditions in a Purchase Order shall be deemed an
acceptance of such terms and conditions or a waiver of the provisions
hereof.
2. PROPOSALS
OR QUOTATIONS TO GOVERN Seller agrees to provide the Products or Services as
described in its proposal or quotation. Prices shall apply for the period
specified in the proposal or quotation, or if no period is specified, for
thirty (30) days. All orders are subject to acceptance by Seller. Upon
acceptance, no order may be cancelled or rescheduled without Seller's
consent, which consent may be given by Seller in its sole discretion. For
Services, Seller may condition acceptance upon Buyer's prior execution of
a non-disclosure agreement relating to Seller's confidential information.
3. PAYMENT
Buyer shall pay LumaLaser Inc. the price(s) stated in the
proposal or quotation. Shipping and transportation charges, and applicable
taxes, if any, are additional unless otherwise specified in the proposal
or quotation. Terms are net fifteen (15) days from date of invoice,
subject to approval of Buyer's credit. A service charge of two (2%) per
month (24% per annum) or the maximum rate allowed by law, whichever is
less, will be made on past due accounts. If Buyer fails to pay any invoice
when due, or if Seller believes in good faith that Buyer's ability to make
payments may be impaired, Seller may suspend delivery of any order or
remaining installment thereof until such payment is made, or may cancel
the remaining installments thereof, and Buyer shall remain liable to pay
for any Products or Services already shipped or delivered. Buyer agrees to
submit such financial information from time to time as may be reasonably
requested by Seller for the establishment and/or continuation of credit
terms. Buyer agrees to pay any and all legal fees associated with payment
collection.
4. DELIVERY
AND TITLE All
shipments of Products by Seller are F.O.B. point of origin and all
transportation charges shall be paid by Buyer in addition to the price of
the Products. Insurance, if desired, shall be responsibility of Buyer.
Subject to Seller's right of stoppage in transit, delivery of the Products
to the carrier shall constitute delivery to Buyer and title and risk of
loss shall thereupon pass to Buyer. Selection of the carrier and delivery
route shall be made by Seller unless specified by Buyer. Seller shall use
reasonable efforts to initiate shipment and schedule delivery as close as
possible to Buyer's requested delivery dates. Buyer acknowledges that
delivery dates provided by Seller are estimates only and that Seller is
not liable for failure to deliver on such dates. Seller reserves the right
to make deliveries in installments. Delivery of a quantity that varies
from the quantity specified shall not relieve Buyer of the obligation to
accept delivery and pay for the Products delivered. Delay in delivery of
one installment shall not entitle Buyer to cancel other installments.
5. ACCEPTANCE OF
PRODUCTS AND PRODUCT RETURNS Inspection
and acceptance of Products shall be Buyer's responsibility. Buyer is
deemed to have accepted the Products unless written notice of rejection is
received by Seller within ten (10) days after delivery of the Products.
Buyer waives any right to revoke acceptance thereafter. Buyer shall report
any discrepancy in shipment quantity or damage within ten (10) days after
delivery. No return of Products shall be accepted by Seller without a
Return Material Authorization ("RMA") Number, which may be issued by
Seller in its sole discretion. Returned Products must be in original
manufacturer's shipping cartons complete with all packing materials. All
Products for return shall be returned freight prepaid in the manner
specified in the RMA. If returned Products are claimed to be defective, a
complete description of the nature of the defect must be included with the
returned Products. Products not eligible for return shall be returned to
Buyer, freight collect. No refunds will be issued. Credit will be issued
to Buyers account at discretion of Seller.
6. FORCE MAJEURE
Seller shall not be liable for failure to fulfill its obligations herein
or for delays in delivery due to causes beyond its reasonable control,
including but not limited to acts of God, natural disasters, acts or
omissions of other parties, acts or omissions of civil or military
authority, Government priorities, changes in law, material shortages,
fire, strikes, floods, epidemics, quarantine restrictions, riots, war,
acts of terrorism, delays in transportation or inability to obtain labor
or materials through its regular sources. Seller's time for performance of
any such obligation shall be extended for the time period of such delay or
Seller may, at its option, cancel any order or remaining part thereof
without liability by giving notice of such cancellation to Buyer.
7. SELLER'S
LIMITED WARRANTY FOR PRODUCTS Seller
warrants to Buyer that upon delivery to Buyer the Products purchased
hereunder shall conform to the applicable manufacturer's specifications
for such Products and that any value-added work performed by Seller on
such Products shall conform to applicable Buyer's specifications relating
to such work. Seller makes no other warranty, express or implied, with
respect to the Products. IN PARTICULAR, SELLER MAKES NO WARRANTY
RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT. With
respect to Products which do not meet applicable manufacturer's
specifications and with respect to value-added work by Seller which does
not meet applicable Buyer's specifications, Seller's liability is limited,
at Seller's election, to (1) refund of Buyer's purchase price for such
Products (without interest), (2) repair of such Products, or (3)
replacement of such Products; provided, however, that such Products must
be returned to Seller, along with acceptable evidence of purchase, within
thirty (30) days from date of delivery, transportation charges prepaid.
Seller shall transfer to Buyer whatever transferable warranties and
indemnities Seller receives from the manufacturer of the Products,
including any transferable warranties and indemnities respecting patent
infringement.
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8. SELLER'S LIMITED
WARRANTY FOR SERVICES
Seller warrants to Buyer that (a) Services will be performed by qualified
personnel in a professional, workmanlike manner, consistent with the
prevailing standards of the industry; and (b) it will use commercially
reasonable efforts to perform the services in a timely fashion responsive
to Client's reasonable requests. Seller makes no other warranty, express
or implied, with respect to Services. IN PARTICULAR, SELLER MAKES NO
WARRANTY RESPECTING THE SUITABILITY OR FITNESS OF SERVICES FOR ANY
PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT. In the event of a
breach of this warranty, Buyer's sole and exclusive remedy and Seller's
sole liability shall be to use its commercially reasonable efforts to
correct the error or condition causing breach of this warranty, without
additional charge to Client.
9. LIMITATION OF
LIABILITIES BUYER SHALL NOT
IN ANY EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING,
WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR
REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS
OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO
REPUTATION OR LOSS OF CUSTOMERS, EVEN IF SELLER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. Buyer's recovery from seller for any claim
shall not exceed buyer's purchase price for the product or $5000,
whichever is less, giving rise to such claim irrespective of the nature of
the claim, whether in contract, tort, warranty, or otherwise. Seller shall
not be liable for and buyer shall indemnify, defend and hold seller
harmless from any claims based on seller's compliance with buyer's
designs, specifications or instructions, or modification of any products
by parties other than seller, or use in combination with other products.
Buyer assumes all responsibility for product and service selection. Buyer
affirms that the performance of the product is affected by many factors
unique to their environment, over which LumaLaser has no insight or
control, such as bandwidth, connectivity methods, protocols in use,
running applications, and so forth. LumaLaser is not an insurer; the buyer
("you") will obtain from an insurer any insurance he/she desire(s). The
amount you pay us is based upon the products values or for any services we
perform. The limited liability we assume under these sales terms is
unrelated to the value of your property or property of others located in
your premises. In the event of loss or injury, you agree to look
exclusively to your insurer to recover damages. You waive all subrogation
and other rights of recovery against us that any insurer or other person
may have as a result of paying any claim for loss or injury to any other
person. You agree that we and our agents, employees, subsidiaries,
affiliates and parent companies are exempt from liability for any loss,
damage, injury or other consequence arising directly or indirectly from
the services we perform or the systems we provide under this contract.
10. EXPORT
CONTROLS The sale,
resale or other disposition of Products and any related technology or
documentation are subject to the export control laws, regulations and
orders of the United States and may be subject to the export and/or import
control laws and regulations of other countries. Buyer agrees to comply
with all such laws, regulations and orders and acknowledges that it shall
not directly or indirectly export any Products to any country to which
such export or transmission is restricted or prohibited. Buyer
acknowledges its responsibility to obtain any license to export, re-export
or import as may be required.
11. GOVERNING LAW;
REMEDIES; FORUM SELECTION This Agreement shall be construed in accordance with, and
disputes shall be governed by, the laws of the State of California,
excluding any law or principle which would apply the law of any other
jurisdiction. Buyer agrees that the courts of the State of California,
including the federal courts located in the State of California, shall
have exclusive jurisdiction over any disputes arising under or relating to
this Agreement or its alleged breach, and Seller irrevocably consents to
the jurisdiction of those courts. If Buyer fails to make payment when due,
Seller may pursue any legal or equitable remedies, in which event Seller
shall be entitled to reimbursement of its costs of collection, including
reasonable attorneys' fees.
12. GENERAL
This Agreement is the complete and exclusive statement of the terms of the
Agreement between the parties and supersedes any and all other prior and
contemporaneous negotiations and agreements, whether oral or written,
between them relating to its subject matter. This Agreement may not be
varied, modified, altered, or amended except in writing, including a
purchase order or a change order issued by Seller. Buyer's rights, duties,
agreements or obligations hereunder may not be assigned or transferred
without the prior written consent of Seller; any attempted or purported
assignment shall be void. The obligations of Buyer shall be binding on its
successors and assigns. Seller's waiver of any provision of the Agreement,
or of any breach or default, shall not be deemed a waiver of any other
provision, nor of any other breach or default. Any provision of this
Agreement held unenforceable in any jurisdiction shall not affect the
remaining provisions of this Agreement in that jurisdiction, nor the
validity or enforceability of such provision in any other jurisdiction.
13. TAXES
Seller's prices are inclusive of all Federal, state, municipal, or other
government excise, sales, use, occupational, gross receipts or like taxes
now in force or enacted in the future and, therefore, are subject to an
increase by the amount of any such tax. If a certificate of exemption or
similar document is applicable to this transaction which will exempt the
sale from sales, use, or a similar tax liability, Buyer will obtain such
certificate or document and deliver the same to Seller on or before the
time the purchase is initiated.
(END OF STANDARD TERMS AND
CONDITIONS)
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