Luminator General Terms and Conditions (10/29/2012)
INTERPRETATION AND COMPLETENESS: THIS CONTRACT IS DEEMED TO BE MADE IN THE STATE OF SELLER’S PRIMARY PLACE OF BUSINESS AND SHALL BE INTERPRETED UNDER THE LAWS OF SAID STATE IN FORCE AT THE DATE OF CONTRACT. PRODUCTS ARE SOLD ONLY ON THE TERMS SET FORTH HEREIN. DIFFERENT OR ADDITIONAL TERMS, PREVIOUSLY OR HEREAFTER PROPOSED BY BUYER, ARE NOT AGREED TO BY SELLER. THIS CONTRACT CONTAINS THE FINAL AND ENTIRE AGREEMENT BETWEEN SELLER AND BUYER AND NO UNDERSTANDINGS, REPRESENTATIONS, AGREEMENTS, MODIFICATIONS, ALTERATIONS OR ADDITIONS SHALL BE EFFECTIVE UNLESS IN WRITING AND SIGNED BY BOTH SELLER AND BUYER.
WARRANTY: SELLER HEREBY EXPRESSLY EXCLUDES ALL EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OR OTHERWISE, except such express warranties as are set forth in this paragraph below. ANY COMPONENT SUPPLIED BY PARTIES OVER WHOM SELLER HAS NO CONTROL AS TO THE QUALITY OF THE MANUFACTURE IS HEREBY EXPRESSLY EXCLUDED FROM ALL EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OR OTHERWISE, except as set forth in the express written warranty of the supplier of such component.
Seller warrants to the Buyer the products manufactured by Seller to be free from defects of material and workmanship for a period on one year from the date of shipment from Seller’s plant provided the products are operated under normal conditions and within the limits of the specifications of the product.
Seller warrants to the Buyer spare parts and repair parts manufactured by Seller to be free from defects of material and workmanship for a period of one year from date of shipment from Seller’s plant provided the products are operated under normal conditions and within the limits of the specifications of the product.
Seller will correct within a reasonable time after receipt of the defective part, parts or product, any defect in any product sold hereunder which it finds to be defective, at Seller’s option either by repairing or replacing the defective part, parts or product and such action shall be accepted by Buyer as full performance of the Warranty.
Buyer shall notify Seller in writing of any defect.
The return of any product shall be at the expense of Buyer. Buyer will contact Seller in advance of any planned return to receive a Return Material Authorization (RMA) number, and to receive written instructions on the shipping return method, and forwarder/courier information.
DAMAGES: Seller’s liability shall in no event, except in the case of non-delivery, exceed the cost of repairing or replacing such part, parts or products or the amount of the purchase price paid with respect to the product on which the claim for damage is based, whichever is the lesser (Buyer is to return to Seller any product with regard to which Buyer receives the amount of the purchase price paid) in the case of non-delivery, Seller’s liability shall not exceed the difference, if any, between the contract price and the market price on the contract day of delivery of the product to be delivered.
INDEMNIFICATION: Buyer shall indemnify, defend, & hold Seller harmless from and against all liabilities, losses, damages, costs and expenses, including reasonable attorney’s fees for any claims by any party resulting from any acts or omissions of Buyer.
SELLER IN NO EVENT WHATSEVER SHALL BE LIABLE FOR LIQUIDATED OR CONSEQUENTIAL DAMAGES OR FOR ANY OTHER LOSS OR COST OF A SIMILAR TYPE.
PRICES AND TERMS: All prices quoted are F.O.B. Seller’s plant and payment of net 30 days after shipment, subject to the approval of its credit department, shall apply. On all invoices not paid by maturity date, Buyer shall pay a service charge from the maturity date of said invoice at the maximum lawful interest rate permitted by law, or such lower rate as Seller, in its sole discretion may determine. Pro-rata payments shall become due as shipments are made. If Buyer delays shipment or delivery, payments shall become due from date when Seller is prepared to make shipment.
DEFAULT BY BUYER: If Buyer fails, with or without cause, to furnish Seller with specifications and/or instructions for, or refuses to accept deliveries of any product herein sold, or is otherwise in default under or breaches or repudiates this or any other contract with Seller or fails to pay when due any invoice under said contract, all of the foregoing being known as events or event of default, then in addition to any and all other remedies which Seller may have hereunder or by law Seller without notice (1) may invoice and declare due and payable all undelivered products, whether finished or unfinished, under this or any other contract with Seller and/or (2) may defer shipment and delivery hereunder and under any other contract until such event(2) of default is (are) removed and/or (3) may cancel any undelivered portion of this and/or any other contract in whole or in part (Buyer remaining liable for damages including but not limited to the difference between the resale price of such undelivered portion and the contract price thereof) and/or (4) may declare forthwith due and payable all outstanding invoices of Buyer under this or any other contract and/or (5) may at any time and from time to time sell all or any products of Buyer or products held for Buyer for the account of Buyer at public or private sales, Buyer is to be responsible for the costs and expenses of such sale and for any deficiency, Seller accounting to Buyer for any excess (Seller having the right to become buyer of such products at any such sale) and/or (6) Seller may take possession of any products Buyer has failed or refused to receive with the right to hold or sell same as above provided.
CONFIDENTIALITY: During the course of this Agreement, one party may become aware of, gain access to, or receive certain information from the source party which is of a proprietary, confidential, or technical nature. If such information is considered sensitive by the source party, the source party shall designate it, in writing, as “Confidential” (hereafter “Confidential Information”). Neither party shall disclose Confidential Information to any third party following the date of initial disclosure unless such disclosure is lawfully required by any governmental agency, is otherwise required to be disclosed by applicable law, or is necessary in any legal proceeding establishing rights and obligations under this Order. Each party agrees to cooperate with the other’s reasonable confidentiality requirements and to immediately notify the other party of any unauthorized disclosure of Confidential Information.
SALES AND SIMILAR TAXES: Unless otherwise stated, the Seller’s prices do not include sales, use, excise, or similar taxes. Consequently, in addition to the prices specified herein, the Buyer hereunder shall pay the amount of any applicable present or future sales, use, excise or other similar tax applicable to the sale of the products.
SHIPMENT, TITLE, AND RISK OF LOSS: Unless the delivery terms of this contract expressly provide for F.O.B. destination, shipping/delivery will be F.O.B. Seller’s point of shipment with title to the goods and risk of loss or damage passing to Buyer at that point. Buyer will be responsible for shipment during transit and for filing any damage or loss claims directly with the carrier. Seller may make partial shipments.
DELIVERY: Seller shall not be liable for any default, delay or reduction in performance or inability to perform occasioned by any cause beyond its control or beyond the control of its suppliers or contractors, including, but not limited to strike, embargo, governmental action or inability to obtain materials. If performance by Seller is delayed by reason thereof, time for performance shall be extended for a period of time equal to the duration of such cause. If as a result of any such cause, Seller is unable to perform this contract in whole or in part, then to the extent that it is unable to perform the contract shall be deemed terminated without liability to either party, but shall remain in effect as to the unaffected portion thereof, if any.
CLAIMS: (a) Buyer shall be conclusively deemed to have accepted any product sold hereunder, and he shall be barred from any remedy except as set forth in paragraph “Warranty” including but not limited too, his right to cancel, reject or claim damages for breach of this contract (1) in the case of all claims except a latent defect 14 days after invoice or shipment date whichever is later or (2) in case of a latent defect 30 days after invoice or shipment date or (3) in any event when the product shall have been altered from it original state.
(b) If within the periods of time specified in subparagraph (a) Buyer notifies Seller in writing sent by certified mail of a claimed breach of this contract then (1) Buyer shall together with such notice of such claimed breach offer Seller in writing prompt opportunity to examine the product and the failure to so offer or to afford adequate opportunity for examination by Seller constitutes acceptance and waiver of all claims for breach (2) if Seller determines such claim to be valid, it may within a reasonable time (I) at Sellers option either repair or replace nonconforming part, parts or product or (II) in the case of any product sold under this contract which remains undelivered on the date of delivery Seller may deliver such product and such actions shall be accepted by Buyer as full performance of this contract.
NONCANCELLATION: Buyer may not cancel or terminate for convenience, or direct suspension of manufacture, except with Seller’s written consent and then only upon terms that will compensate Seller for its engineering, fabrication, and purchasing charges and any other costs relating to such cancellation, termination or suspension, plus a reasonable amount of profit.
SEVERABILITY OF BREACH: Any defect in quality, delay in delivery or non-delivery shall affect only the particular shipment so defective or delayed or not delivered and shall not affect the balance of this contract or any other contract. Any shipment not in dispute shall be paid for on the due date, as provided in this contract, without offset, defense or counterclaim and regardless of any controversy relating to any other shipment or undelivered product.
EXPORT CONTROL: a) Definition. Export-controlled items, as used in this clause, means items subject to the Export Administration Regulations (EAR) (15 CFR parts 730-774) or the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130). The term includes: b) The Parties shall comply with all applicable laws and regulations regarding export-controlled items, including, but not limited to, the requirement for Contractors to register with the Department of Stare in accordance with the ITAR. The Parties shall consult with the Department of Stare in accordance with the ITAR. The Parties shall consult with the Department of Stare regarding any questions relating to compliance with the ITAR and shall consult with the Department of Commerce regarding any questions relating to compliance with the EAR.U.S. c) The Parties responsibility to comply with all applicable laws and regulations regarding export-controlled items exists independent of, and is not established or limited by, the information provided by this clause. d) Nothing in the terms of this clause adds to, changes, supersedes, or waives any of the requirements of applicable Federal laws, Executive orders, and regulations. e) Seller will provide to the Buyers’ freight forwarder information needed for proper filing of export documents from the U.S. as required. f) Buyers’ Freight Forwarder will supply Seller, copies of all export documents including MAWB, HAWB, ITN, and detail elements of the information used to file the EEI with U.S. Census within 24hrs of shipment receipt from Seller. g) Seller may, at their own option, file the required EEI, and provide the ITN to Buyers’ forwarder/courier of choice. h) The Buyer shall include the substance of this clause, including this paragraph (h), in all subcontracts.
SEVERABILITY: If any clause, sentence or provisions of this order are adjudged by any court, of competent jurisdiction, to be invalid, such judgment shall not affect, impair or invalidate the remainder hereof, but shall be confined in its operation to the clause, sentence, provision or part hereof directly involved in the controversy in which such judgment shall have been rendered.
GOVERNING LAW: This purchase order shall be governed by and interpreted pursuant to the laws of the state of Texas and the sole forum in Collin County, Texas.
ENTIRE AGREEMENT: This order which includes any supplemental sheets, schedules, exhibits, annexed by Buyer hereto, contains the complete and entire agreement between the parties and supersedes any previous communications, representations or agreements, whether verbal or written, with respect to the subject matter hereof.