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Terms and Conditions of Sale
- General
: LIGHTech
Fiberoptics, Inc. (“LIGHTech? expressly limits its acceptance and any
acknowledgement of a Buyer’s purchase order or other commitment to purchase
(“PO?, and the sale by LIGHTech of LIGHTech manufactured products and/or
services, and products of third parties sold by LIGHTech, as a distributor,
(collectively “Goods? solely to the terms and conditions contained in
this document (“LIGHTech Terms? unless otherwise agreed to in writing by
LIGHTech expressly stating amendment hereof, and to those terms in the
Buyer’s PO which in any respect do not contradict, conflict or are
inconsistent with LIGHTech Terms. All other terms and conditions of Buyer’s
PO are hereby expressly rejected and superseded by LIGHTech Terms, and the
failure of LIGHTech to object to any provision in Buyer’s PO and related
documents shall not be deemed acceptance thereof, nor a waiver of LIGHTech
Terms. Failure of Buyer to object in writing to any LIGHTech Terms prior to
the shipment of any Goods shall be deemed to be acceptance by Buyer of
LIGHTech Terms.
- PERFORMANCE AND SHIPPING DATES
: Performance and shipping dates
specified or communicated by LIGHTech to the Buyer are approximate dates only,
and the failure to perform or ship on such dates shall not be considered a
breech by LIGHTech. All claims for shortage of products ordered or for
incorrect charges must be presented to LIGHTech within ten (10) days after
receipt by Buyer of the particular shipment of products.
- CANCELLATION
: The Buyer shall not cancel, terminate, suspend
performance of, or issue a hold on, any PO, in whole or in part, without the
prior written consent of LIGHTech, which consent, if given, shall be upon
terms that will compensate LIGHTech for any loss or damage therefrom,
including but not limited to, the price of Goods shipped to, performed for, or
held separately for, the Buyer, and lost profits, incurred costs, and a
reasonable allocation of general and administrative expenses relating to the
Goods. Any termination of a PO is subject to a minimum termination charge of
fifteen percent (15%) of the value of the Goods not shipped or performed.
- PRODUCT WARRANTY
: LIGHTech warrants only to the original Buyer that
all products made by LIGHTech are free from defects in material and
workmanship for a period of one (1) year from date of shipment. All other
products sold by LIGHTech as distributor carry only the original
manufacturer’s warranty. Under warranty, LIGHTech will repair or replace at
its sole option, products made by it which upon inspection by LIGHTech and in
the sole opinion of LIGHTech, are determined to be defective in workmanship or
material. LIGHTech will accept for repair, replacement or credit under
warranty products made by third parties if authorized to do so. All products
repaired or replaced under warranty are only warranted for the remaining
unexpired period of time in the original warranty for the particular defective
product. LIGHTech reserves the right, at its sole option, to issue a credit
note for any defective product as an alternative to repair or replacement.
These warranties shall extend to all products which have proved defective
through normal use, but excludes and does not cover any products or parts
thereof which have been accidentally damaged, disassembled, modified, misused,
used in applications which exceed their specifications or ratings, neglected,
improperly installed or otherwise abused. Buyer must claim under the warranty
in writing no later than thirty (30) days after the claimed defect is
discovered. All claims under this warranty must be made by the Buyer and no
claim will be accepted from any third party.
- REPAIR PROCEDURES
: LIGHTech will only accept returns for which an
approved Return Material Authorization (RMA) has been issued by LIGHTech.
Defective products shall be returned prepaid and insured to LIGHTech at the
address shown herein. All products which have been returned to LIGHTech but
which are found to meet all previously applicable specifications for such
products shall be subject to LIGHTech’s standard examination charge in
effect at the time, which shall be charged to the Buyer. All products returned
to LIGHTech which are not accompanied by an itemized statement of defects,
shall be returned to the Buyer at the Buyer’s expense and no evaluation of
such products shall be carried out by LIGHTech.
- PRICES
: All prices are (i) firm for sixty (60) days from the date of
quotation, (ii) F.O.B. point of shipment (shipping costs and risk of loss or
damage during shipment are Buyer’s responsibility), and (iii) exclusive of
taxes and all extra charges connected with, or related to, transportation or
special packaging. All sales are final.
- TAXES
: Any tax or other charge which LIGHTech shall be liable to
collect on behalf of any government authority as a result of the sale, use,
delivery or performance of Goods, shall be the responsibility of the Buyer,
and if paid by LIGHTech shall be charged to the Buyer.
- TERMS OF PAYMENT
: All terms of payment are subject to approval by
LIGHTech. Payment terms for Buyers on approved credit are net thirty (30) days
from the date of the invoice. All payments not received when due shall be
subject to an additional charge of one and one half percent (1.5%) per month
(annual rate 19.36%) of the unpaid amount until the date of payment. There
shall be no set-off right for the Buyer.
- SOFTWARE LICENSE
: Where Goods contain software (“Software?,
LIGHTech does not transfer ownership but only grants the Buyer a perpetual,
non-exclusive license to use Software but restricted only to use related to
the operation of the Goods. Such license is transferable only with the
transfer of ownership of the Good in which it is used. Except for backup
copies as permitted by law, Buyer shall not (i) modify, reproduce, copy,
reverse engineer, decompile or disassemble all or any portion of the Software,
(ii) distribute, market, disclose, rent, lease or sublicense the use of the
Software to any third party, or (iii) permit or authorize anyone within
Buyer’s reasonable control to do any acts in (i) or (ii).
- CHOICE OF LAW
: The construction, interpretation and performance of
this Agreement shall be governed by the laws of the state of California and
United States of America as applicable, without regard to conflicts of law
principles.
- RIGHTS IN INTELLECTUAL PROPERTY AND TOOLING
: All right, title and
interest in and to any inventions, discoveries, improvements, methods, ideas,
computer and other apparatus programs and related documentation, other works
of authorship fixed in any tangible medium of expression, mask works or other
forms of intellectual property, whether or not subject to statutory
protection, which are made, created, developed, written, conceived or first
reduced to practice by LIGHTech solely, jointly, or on its behalf, in the
course of, arising out of or as a result of work done under a PO, and any
tooling, set-up, fitting-up and preparation charges whether or not invoiced,
shall belong to and be the exclusive property of LIGHTech.
- FORCE MAJEURE
: LIGHTech shall not be responsible or liable for any
delay or failure to deliver Goods or perform, due to any unforeseen
circumstances or causes beyond the control of LIGHTech, including but not
limited to, acts of God, fire, flood, explosion, earthquake, war,
insurrection, embargo, acts of civil or military authorities, delay in
delivery by LIGHTech’s suppliers, accident, strike or other labor dispute,
inability to secure labor, material, facilities, energy or transportation. In
the event of a force majeure condition, the LIGHTech time for delivery or
other performance will be extended for a period of time equal to the duration
of such force majeure condition.
- LIABILITY
: Except for the warranties stated herein, no warranty,
condition or representation, express, implied, oral or statutory, is provided
including, without limitation, any warranty, condition or representation: (i)
of merchantability or fitness for a particular purpose; (ii) under the United
Nations convention on contracts for the international sale of goods; or (iii)
that the Goods will be free from infringement or violation of any rights,
including intellectual property rights of third parties. The Buyer’s sole
and exclusive remedies hereunder and the only liability of LIGHTech is
expressly limited to the Terms of the warranty set out herein. LIGHTech shall
not be liable to the Buyer, or any third party, for installation and removal
costs, or for any other special, consequential, incidental, exemplary or
indirect costs or damages, including without limitation, litigation cost, the
loss of production or profit arising from any cause whatsoever, even if
advised of the possibility of such costs or damages or even if such costs or
damages is alleged to arise from negligent acts, omissions, or conduct of
LIGHTech or its employees. LIGHTech neither assumes nor authorizes any person
or entity, including LIGHTech’s representatives and resellers, to assume or
accept any liability or obligation, or make any commitment for LIGHTech with
regard to the Goods.
MISCELLANEOUS: This Agreement sets forth the entire agreement between
LIGHTech and the Buyer and replaces all prior terms and conditions, oral or
written, between the parties for the Goods. Waiver by LIGHTech of any
provision herein shall not be deemed to be a waiver of such provision in the
future or any other provision. Buyer may not assign or transfer any right
hereunder without the prior written consent of LIGHTech.
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