Sublime Laser, Inc.
Terms and Conditions of Sale
1. DEFINITIONS. “Seller” means Sublime Laser, Inc., a Delaware corporation. “Buyer” means the recipient of this Order Confirmation. “Products” means all or any part of the goods, work, and services to be provided by Seller to Buyer hereunder.
2. PRICE. The purchase price for the Products shall be set forth in Seller’s quote, invoice or confirmation document. Seller has the right at any time to revise the prices of the Products with or without written notice to Buyer. Such revisions shall apply to all orders received after the effective date of the revision, but shall not affect unfilled orders received by Seller prior to the effective date of the revision. All prices are in U.S. dollars and are exclusive of all shipping costs, insurance premiums and all sales, use, excise or other taxes, duties, levies or fees imposed by any governmental body unless Seller expressly agrees otherwise in writing.
3. CONTRACT TERMS. No terms or conditions other than those stated herein and no agreement or understanding, oral or written, in any way purporting to modify these terms and conditions shall be binding on Seller unless hereafter made in writing, specifically stating that it is a modification of these Terms and Conditions of Sale, signed by Seller’s authorized representative. Without limiting the foregoing, if these Terms and Conditions of Sale are deemed to be an offer, acceptance of this offer must be made on its exact terms and if additional or different terms are proposed by Buyer, Seller hereby objects to and rejects such additional or different terms proposed by Buyer, whether contained in Buyer’s purchase order, shipping release forms or elsewhere. Alternatively, if these Terms and Conditions of Sale are deemed to be in response to, an acceptance of or a written confirmation of Buyer’s offer, Seller’s acceptance is expressly conditioned upon Buyer’s assent to all of the terms and conditions set forth in these Terms and Conditions of Sale, which is hereby deemed a counteroffer. Buyer’s acceptance of Products tendered to Buyer by Seller shall constitute Buyer’s express assent to all of the terms and conditions contained in these Terms and Conditions of Sale. All proposals, negotiations and representations, if any, made prior to or with reference hereto are hereby superseded by these Terms and Conditions of Sale.
4. PURCHASE ORDERS. All orders for Products shall be initiated by written purchase orders sent to Seller by electronic mail, facsimile, air mail, courier or other manner acceptable to the parties. No such purchase order shall be binding on Seller until accepted in writing by Seller, and Seller shall have no liability to Buyer with respect to purchase orders that are not accepted. Shipment of an order shall be deemed to constitute Seller’s acceptance thereof. All purchase orders shall be subject to these Terms and Conditions of Sale whether or not the purchase orders so state. Purchase orders delivered to Seller may not be cancelled or modified by Buyer without the prior written consent of Seller. Notwithstanding the foregoing, Buyer shall reimburse Seller for any and all costs incurred as a result of a cancelled or modified purchase order.
5. PAYMENTS. All amounts due for Products are payable as specified on Seller’s invoices or otherwise in writing. Buyer agrees to pay the full amount of each invoice when due and such amounts will not, under any circumstance, be subject to abatement, reduction, offset, credit or deferment, except for any prompt payment discount, if any, as specifically set forth on the face of Seller’s invoice. All sales shall be cash on delivery unless Seller has agreed in writing to other payment terms, in which case Buyer shall pay Seller’s invoices in full according to the terms stated on each invoice. Seller, at its option, may request a deposit from Buyer prior to furnishing any Products. In the event any amount due Seller is not paid in full on the terms and conditions set forth herein, Buyer shall pay interest on the unpaid balance at the rate of one and a half percent (1.5%) per month or at the maximum legally permissible rate, whichever is lower. Prices are exclusive of all sales, use, excise or other taxes imposed by any governmental body. All present and future taxes imposed by any Federal, state, foreign or local authority which Seller may be required to pay or collect, upon or with reference to the sale, purchase, transportation, delivery, storage, use or consumption of Products, including taxes upon or measured by the receipts therefrom (except net income and equity franchise taxes), shall be borne by Buyer. In the event that Seller is required to pay any such taxes, duties, levies or fees, Buyer shall promptly reimburse Seller.
6. DELIVERY. Unless specifically set forth on the face of the invoice, all Products are sold F.O.B. Seller’s manufacturing facility. Buyer shall pay all charges, including, without limitation, all shipping charges and insurance premiums relating to the shipment of Products. Seller’s obligation to effect shipment of the Products shall be fully discharged when the Products are delivered to a carrier for shipment to Buyer. Seller assumes no liability in connection with shipment and no carrier shall be construed to be an agent of Seller. Risk of loss for all Products passes to Buyer upon tender of delivery at the F.O.B. point specified on Seller’s invoice or, if not specified, Seller’s location specified above. Any charges at destination for spotting, switching, handling, storage and other accessorial services and demurrage, shall be for Buyer’s account. Seller shall have the right to assess a storage and handling charge for Products left in Seller’s possession after notification to Buyer that the Products are available to ship. Time is not of the essence as to Seller’s shipment obligation only. Shipment and delivery schedules specified are based on Seller’s estimate according to conditions existing at the time. Seller shall not be liable for delays in shipment or delivery. Each shipment is to be considered a separate sale. Seller reserves the right to ship all or any part of the Products from any shipping point of Seller.
7. INSPECTION. Buyer shall inspect all Products promptly upon delivery thereof to Buyer or its shipping agent. Where inspection is made by Buyer at Seller’s place of business, Buyer’s inspector shall be deemed the agent of Buyer with authority to waive specified tests and details of test procedures and to accept Products as conforming to this contract with respect to all characteristics of such Products for which such inspection is made. Buyer must provide Seller with written notification of any (a) shortages of Products within ten (10) days after Seller tenders delivery to Buyer (all such shortages must be documented in writing by the carrier), and (b) Products not conforming to the Warranty (as defined in Section 11) within ten (10) days following discovery of the defect and in no event later than sixty (60) days from the date of delivery. Seller must be given a reasonable opportunity to investigate and confirm any alleged nonconformance. If no notice of a shortage is received by Seller within ten (10) days of delivery, Seller shall not be liable for any such shortages and the Products shall be deemed to have been accepted by Buyer as conforming to this contract. For properly rejected Products, Seller shall pay the shipping charges (a) for the return of the nonconforming Products to Seller and (b) for shipment of repaired or replacement Products to Buyer’s location. Buyer shall be responsible for all shipping charges for any Products which have been improperly rejected. In no event shall Seller be liable for repair, replacement, or shipment of Products, which have been damaged or abused by Buyer or any third party. Except for Products that have been properly rejected in accordance with the terms of this Section, all sales are final and the Products are not returnable to Seller under any circumstances.
8. RESERVATION OF TITLE AND GRANT OF A SECURITY INTEREST. Although risk of loss or damage to Products shall pass to Buyer upon tender of delivery, as set forth in Section 6 above, transfer of legal and equitable title to Products shall be subject to full payment of the purchase price therefor. Until full payment is received by Seller, the Products shall remain the property of Seller and Buyer shall carry full insurance on the Products throughout the time they are in transit or in Buyer's possession, custody or control. Until payment in full has been made, Buyer also hereby grants to Seller a security interest, or similar lien or right of repossession, in the Products as a whole and individually, together with any proceeds, including accounts receivable therefrom. Buyer hereby authorizes the filing of and, to the extent Seller believes necessary or advisable, Buyer further agrees to execute and deliver to Seller upon demand all documents, including financing statements, evidencing such security interest in a form satisfactory for filing with appropriate filing officers in order that Seller may perfect its security interest. Buyer hereby appoints Seller as Buyer's "attorney-in-fact" to do, at the option of Seller, all acts which Seller deems reasonably necessary or desirable to perfect and continue perfected the aforementioned security interest, or similar lien or right of repossession.
9. FORCE MAJEURE; ALLOCATION OF PRODUCTION. In the event either party's performance hereunder is delayed or made impossible or commercially impracticable due to causes such as fire, explosion, strike or other difference with workers, shortage of energy sources, facilities, material or labor, delay or lack of transportation, temporary or permanent plant shutdown, breakdown or accident, compliance with or other action taken to carry out the intent or purpose of any law, regulation or other requirement of any governmental authority, or any cause beyond that party's reasonable control, that party shall have such additional time within which to perform this contract as may be reasonably necessary under the circumstances. However, the obligation of Buyer to pay for Products delivered is never suspended. In addition, if, due to force majeure or any other cause, Seller is unable to produce sufficient Products to meet all demands from customers and internal uses, Seller shall have the right, in its sole discretion, to allocate production among its customers and plants in any manner that Seller deems appropriate without liability to Buyer or any other third party.
10. USE OF THE PRODUCTS. Buyer shall be solely responsible for the proper and safe transportation, delivery, installation, preparation for operation, operation, use and storage of the Products, and shall bear all costs associated therewith. Buyer shall also be solely responsible for instructing users of the Products on proper use of such products and shall require such users to utilize proper safety equipment in accordance with standard industrial safety practices. Without limiting the foregoing, Buyer shall be solely and fully liable for any claims, damages, liabilities or the like arising from or otherwise relating to modification, abuse or misuse of the Products or Buyer's negligence or misconduct in connection with its transportation, delivery, installation, preparation for operation, operation, use and storage of the Products. Buyer shall also be liable for the activities of any person or third party to whom Buyer permits access to the Products and for persons working for Buyer, regardless of the legal relationship between them, including, without limitation, Buyer's employees and subcontractors. Without limiting the foregoing, Buyer shall indemnify, defend and hold Seller harmless from any and all claims, damages, liability and the like arising from or otherwise relating to Buyer's obligations or liabilities under this Section.
11. LIMITED WARRANTY; DISCLAIMERS. Upon payment in full by Buyer for the Products, Seller warrants to Buyer that the Products will be free from liens and encumbrances, and, subject to the limitation on remedies set forth in Section 12, the Products will be free from any material defects in material and workmanship for a period of sixty (60) days from the date that Seller tenders delivery to Buyer (the “Warranty”). This Warranty and Seller’s liability hereunder are expressly conditioned on Buyer’s proper use, care and storage of the Products and any modifications or alterations to a Products without Seller's prior written consent will automatically void the Warranty for the Product. Seller shall have no liability for any claims that are due to normal wear, product misuse, product abuse, product modification or improper product selection. In the event of a breach of this Warranty, Buyer’s sole remedy, and Seller’s sole obligation, shall be the repair or replacement of the defective or non-conforming Products or, at Seller’s option, the refund of the purchase price for such Products. EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS SECTION 11, THE PRODUCTS ARE PROVIDED TO BUYER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
12. LIMITATION OF REMEDIES. BUYER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO A BREACH OF THE WARRANTY SET FORTH IN SECTION 11 OR ANY OTHER BREACH OF THIS AGREEMENT SHALL BE LIMITED EXCLUSIVELY TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE OR NONCONFORMING PRODUCTS OR, AT SELLER’S OPTION, THE REFUND OF THE PURCHASE PRICE AS SET FORTH BELOW. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR PROPERTY DAMAGE, LOST PROFITS OR REVENUE, DELAY, OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR NATURE ARISING FROM ANY CAUSE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE BREACH OF SELLER’S WARRANTY HEREUNDER OR FROM THE NEGLIGENCE OR ACTS OF SELLER OR THE EMPLOYEES, OFFICERS, DIRECTORS AND CONSULTANTS OF SELLER, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES, INCLUDING ANY FAILURE OF AN EXCLUSIVE REMEDY OF ITS ESSENTIAL PURPOSE, SHALL SELLER’S LIABILITY EXCEED THE PURCHASE PRICE PAID BY THE BUYER FOR THE DEFECTIVE OR NONCONFORMING PRODUCTS.
13. IMPORT AND EXPORT REQUIREMENTS. Buyer shall, at its own expense, obtain all import and export licenses and permits, pay customs charges and duty fees, and take all other actions required to accomplish the export and import of Products purchased by Buyer. Buyer further warrants that it shall comply in all respects with the restrictions set forth in all applicable export licenses for the Products purchased by Buyer.
14. WAIVER. Waiver by Seller or Buyer of any breach of these provisions shall not be construed as a waiver of any other breach.
15. ASSIGNMENT. This contract shall be binding upon the Buyer and Seller and their respective successors and assigns; provided, however, that Buyer may not assign its rights or obligations hereunder without the prior written consent of Seller.
16. GOVERNING LAW. This contract shall be governed by and construed in accordance with the internal laws of the State of Utah. Any controversy or claim arising out of this contract shall be brought and maintained in the appropriate court in the State of Utah.