TERMS AND CONDITIONS
 

Below is the legal language under which products and services are sold by Lumalaser Incorporated. This is standard material; however, should you have any questions about these terms, please feel free to contact us.

STANDARD TERMS AND CONDITIONS
 

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.

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)