Terms and Conditions of Sales by Luxim: Light Emitting Plasma

Terms and Conditions of Sales

Unless otherwise specifically agreed to in writing by Seller, these Sales Terms and Conditions shall apply to any and all orders placed by Buyer for products or services of Seller. In these sales terms and conditions, the Luxim Corporation designated in Seller’s order acknowledgement is referred to as “Seller” and the party to whom Seller’s order acknowledgement is addressed is referred to as “Buyer.

ACCEPTANCE OF ORDERS

Seller's acceptance of all orders and all offers and sales by Seller are subject to and expressly conditioned upon Buyer's assent to the terms and conditions of this Agreement. The Agreement consists of these sales terms and conditions, Seller’s quotation, if any, and Seller’s order acknowledgement. Buyer's acceptance of any offer by Seller must be made on such terms and conditions exactly as offered by Seller. Any of Buyer's terms and conditions which are different from or in addition to those contained in this Agreement are objected to by Seller and shall be of no effect unless specifically agreed to in writing by Seller. Commencement of performance or shipment shall not be construed as acceptance of any of Buyer's terms and conditions which are different from or in addition to those contained in the Agreement. If a contract is not earlier formed by mutual agreement in writing, acceptance by Buyer of products or services furnished by Seller pursuant hereto shall be deemed Buyer’s assent to all of the terms and conditions of this Agreement.

PRICES

"Prices shown on the face of this Quotation are in US dollars, include packaging for domestic and export shipment, and are exclusive of any other amounts including without limitation fees for export, special packaging, transportation to the agreed destination and insurance.
Prices do not include any taxes, customs duties or tariffs. When Seller has the legal obligation to pay or collect any such taxes, the appropriate amount shall be paid by Buyer. If Buyer is exempt from any such taxes, Buyer must provide Seller with a valid exemption.
Any amounts paid at any time by the Seller that are the responsibility of the Buyer shall be invoiced to the Buyer and reimbursed to the Seller.

TERMS OF PAYMENT

All payments shall be in U.S. dollars
Seller will invoice Buyer for each shipment. The amount invoiced will include the price of the Products plus all applicable taxes, fees, transportation, insurance, and other charges. If all Products in Buyer’s purchase order are not shipped at the same time, Seller will invoice Buyer at the time of shipment for the products that are shipped. Each shipment shall be considered a separate and independent transaction and payment for each shipment shall be due accordingly.
Buyer shall pay for all products upon delivery. Seller may, at its option, elect to extend credit to the Buyer. If Seller extends credit to Buyer, invoices will be issued upon shipment and payment shall be due in full within thirty (30) days from the invoice date or such other date specified in the Agreement. Seller reserves the right to change the amount of or withdraw any credit extended to Buyer.. Any unpaid due amounts will be subject to interest at 1.5% per month, or, if less, the maximum rate allowed by law.
For Products that are to be exported, payment must be by a confirmed, irrevocable letter of credit, sufficient to cover the full amount of the invoice, and shall be made against Seller's invoice upon presentation of Seller's shipping documents.

DELIVERY, TITLE AND RISK OF LOSS

The shipment dates in this Quotation are estimates only. Buyer acknowledges that such dates may change due to unpredictable market trends.

Unless otherwise agreed to in writing by Seller, products shall be shipped EXW Seller’s manufacturing facilities or inventory hub (Incoterms 2000) to any location designated by Buyer (subject to Section 15) and shall be deemed delivered to Buyer when delivered to the transportation Seller at the shipping point.
Products shall be packed for shipment in Seller’s standard shipping cartons, marked for shipment to the destination specified in Buyer’s purchase order, and made available for pickup by the carrier at Seller’s shipping location, at which time risk of loss shall pass to Buyer
Buyer shall pay all freight, insurance, and other shipping expenses, as well as expenses for any special packing.
Title and risk of loss and/or damage to products shall pass to Buyer upon delivery of the products to the transportation ompany at the shipping point. Confiscation or destruction of or damage to products shall not release, reduce or in any way affect the liability of the Buyer. In the event Buyer rejects or revokes acceptance of any products for any reason, all risk of loss and/or damage to such products shall nonetheless remain with the Buyer unless and unitl the same are returned at Buyer’s expense to such place as Seller may designate in writing.
All products must be inspected upon receipt and claims filed by Buyer with the transportation company when there is evidence of shipping damage, either concealed or external.

PERFORMANCE, CHANGES AND CANCELLATIONS

Seller will make a reasonable effort to observe the dates specified herein or such later dates as may be agreed by Buyer for delivery or other performance, but Seller shall not be liable for any delay in delivery of failure to perform due to acceptance of prior orders, strike, lockout, riot, ware, fire, act of God, accident, delays caused by any subcontractor or supplier or by Buyer, technical difficulties, failure or breakdown or machinery or components necessary for order completion, inability to obtain or substantial rises in the price of labor or materials or manufacturing facilities, or compliance with any law, regulation, order or direction, whether valid or invalid, of any governmental authority or instrumentality thereof, or due to any circumstances or any causes beyond reasonable control, whether similar or dissimilar to the foregoing and whether or not foreseen. As used herein, “performance” shall include, without limitation, testing and warranty repair and replacement, as applicable.
Buyer agrees that any delay in delivery or failure to deliver or perform an part of this Agreement shall not be grounds for Buyer to terminate or refuse to comply with any provisions hereof and no penalty of any kind shall be effective against Seller for such delay or failure; provided, however, that if the delay or failure extends beyond six (6) months from the originally scheduled date either party may, with written notice to the other, terminate this Agreement without further liability to the unperformed part of this Agreement.
Buyer may reschedule or cancel purchase orders for standard Products (but not for services) upon 30 days written notice. Buyer may reschedule or cancel purchase orders for non-standard Products, or for services, only if Buyer gives written notice longer than the applicable lead-time.
Seller may, from time to time in its sole discretion: (i) discontinue or limit its production of any Product; (ii) allocate, terminate or limit deliveries of any product in time of shortage; and (iii) modify the design of, specifications for, or construction of any Product, provided the modification has equivalent form, fit and function.
All shipments and charges set forth on any invoice will be deemed correct unless Seller receives from Buyer, no later than fifteen (15) days after the date of shipment, a written notice specifying the shipment, the purchase order number, and the exact nature of the non-conformity.

DELIVERY ACCEPTANCE

All products delivered hereunder shall be deemed accepted by Buyer as conforming to this Agreement, and Buyer shall have not right to revoke any acceptance, unless written notice of the claimed nonconformity is received by Seller within twenty (20) days of the delivery thereof.

LIMITED WARRANTY

Seller warrants to Buyer that each Product, as delivered, will be free from defects in materials and workmanship for a period of one (1) year from the date such product is delivered to Buyer (“Warranty Period”). Seller's sole liability and Buyer's exclusive remedy for products that fail to conform to this Seller product limited warranty ("Nonconforming Products") is limited to repair or replacement of such Nonconforming Products, at Seller’s sole option and election. The warranty for the repaired or replaced Product is limited to the scope and duration of the original warranty for the Nonconforming Product. This warranty is contingent upon proper use of the Product in the application for which it was intended and does not apply to any Product that is subjected to unusual physical or electrical stress, misuse, neglect, improper testing or storage, or unauthorized repair.
The above warranty is for Buyer’s benefit only, and is non-transferable. OTHER THAN AS EXPRESSLY SET FORTH IN SECTION (a) ABOVE, SELLER MAKES NO WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE. SELLER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW. WARRANTY VOID IN RESTRICTED TERRITORIES OR IF USED IN UNDESIGNATED APPLICATIONS UNLESS PERMISSION IS EXPRESSLY PROVIDED TO BUYER BY SELLER IN WRITING. RESTRICTED TERRITORIES INCLUDE ABKHAZIA, ARMENIA, AZERBAIJAN, BELARUS, GEORGIA, KAZAKHSTAN, KYRGYZSTAN, MOLDOVA, MONGOLIA, RUSSIA, SOUT OSSETIA, TAJIKISTAND, TURKMENISTAN, UKRAINE AND UZBEKISTAN. SELLER RESERVES THE RIGHT TO CHANGE RESTRICTED TERRITORIES AND WILL HONOR ELIGIBLE TERRITORIAL WARRANTY COVERAGE ON THE BASIS OF THE DATE OF SALE.
Return of defective Products must be made according to Seller’s then-current return and RMA policies.
Buyer shall indemnify, defend and hold harmless Seller for any costs, expenses, damages, or other losses arising out of (i) any warranty greater scope or duration than that set forth in this Seller Product Limited Warranty; (ii) failure to disclaim implied warranties and limit remedies and liabilities, by and on behalf of Seller.

LIMITATION OF LIABILITY

SELLER'S LIABILITY TO BUYER ARISING OUT OF OR RELATING TO ANY PRODUCTS SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY BUYER TO SELLER FOR SUCH PRODUCTS. IN NO EVENT WILL SELLER BE LIABLE FOR LOST USE, PROFITS, REVENUE, COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR ANY OTHER SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

EXPORT CONTROL

Seller’s export of the products, and any technical information related thereto, may be subject to United States and/or other national or international (e.g. UN) laws and regulations controlling the export and re-export of technical data and products, or limiting the export of certain products to specified countries (e.g. embargo regulations). Sell shall not be obligated under these Sales Terms and Conditions to export, transfer or deliver any products or related technical information to Buyer if prohibited by applicable law or until all necessary governmental authorization have been obtained. Seller shall not be liable under these Sales Terms and Conditions for any expenses or damages resulting from failure to obtain or delays in obtaining any required government authorizations. Buyer shall comply fully with all export administration and control laws and regulations of the U.S. government and/or other national or international (e.g. UN) laws and regulations as may be applicable to the export, re-export, resale or other disposition of any products purchased from Seller.

GENERAL

All designs, data, drawings, software, or other technical information supplied by Seller to Buyer in connection with this sale shall remain Seller’s sole property.
Seller will be excused from any obligation to the extent performance thereof is rendered impossible by acts of God, fire, flood, riots, material shortages, strikes, governmental acts, disasters, earthquakes, inability to obtain labor or materials through its regular sources, or any other reason beyond the reasonable control of Seller.
None of the Products or underlying information or technology may be exported or re-exported, directly or indirectly, contrary to US law or US Government export controls.
THESE TERMS AND CONDITIONS ARE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REFERENCE TO CONFLICT OF LAW PRINCIPLES. The federal and state courts within the State of California will have exclusive jurisdiction to adjudicate any dispute arising out of these Terms and Conditions of Sale.
No modification, amendment, rescission, waiver or other change in this Agreement shall be binding on Seller unless agreed to in writing by Seller. The invalidity or unenforceability, in whole or in part, of any provision herein shall not affect the validity or enforceability of any other provision herein. Failure or delay on the part of either party to exercise any right, power, privilege or remedy herein shall not constitute a waiver thereof.