1. Governing Provisions. These terms and conditions, the attendant proposal or acknowledgement, and all documents incorporated by reference therein, bind the company (or companies) which issues the proposal or acknowledgement for the sale of goods (the “Products”), or services (the “Services”) to be provided hereunder by Laser Light Technologies, Inc. (“LLTI”) and constitute the entire agreement (the “Agreement”) between the buyer (the “Buyer”) and LLTI regarding such sale. Products and Services may be referred to herein collectively as “Products.”
2. Acceptance. Buyer’s acceptance of this offer is limited to acceptance of the express terms of this offer set forth in these terms and conditions of sale (the “Terms”), the attendant proposal or acknowledgement, and all documents incorporated by reference in the Agreement. Any proposal for additional or different terms or attempt by Buyer to vary any of the terms set forth in the Terms in Buyer’s acceptance by purchase order or otherwise will not operate as a rejection of this offer to sell, but will be deemed a material alteration thereof, and this offer will be deemed accepted by Buyer without the additional or different terms.
3. Cancellation or Modification.Buyer or LLTI must provide 30 days’ advance written notice before terminating or modifying the order unless otherwise agreed to in writing by the other party. In the event of such termination or modification, Buyer shall compensate LLTI for all resultant costs and damages, including, without limitation, payment for all work performed under the Agreement before termination of Buyer’s order.
4. Price. Unless specifically stated otherwise in LLTI’s quotation or acknowledgement, the terms of this Section 4 apply. Except as specifically stated in the Agreement, any manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, value-added tax, duty, customs agent or broker fees, inspection or testing fee, freight costs, insurance, or any other tax, fee, or charge of any nature whatsoever imposed on, in connection with, or measured by any transaction between LLTI and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced. Prices are in U.S. dollars. If a credit card is used for payment, a 3%convenience fee will be applied.
5. Payment. Unless otherwise agreed to in a writing signed by LLTI, payment shall be due 30 days from Buyer’s receipt of each invoice, without discount. Any discount that LLTI expressly provides for in writing applies only to the sale price of the Products at the shipping point and does not apply to any charges made for taxes, storage, loading, transportation, or other fees or costs. Buyer shall pay a delinquency charge of the lesser of (a) 1-1/2% per month and (b) the highest rate allowed under applicable law on any amount due and unpaid more than 30 days from the date of the invoice billing such amount.
6. Delivery; Performance Dates; Title and Risk of Loss; Quantity. Unless specifically stated otherwise in LLTI’s proposal or acknowledgement, LLTI shall deliver Products FOB LLTI’s manufacturing facility or warehouse in Hermann, Missouri, and title to risk of loss of the Products shall pass to Buyer upon such delivery by LLTI. Delivery and performance dates are approximate. With respect to LLTI’s provision of Services, LLTI assumes that Buyer will be available for meetings and timely review. If for any reason Buyer is not available, milestones can be delayed. If a project milestone is delayed by more than 14 days, LLTI will bill for that milestone prior to completion. Unless expressly stated otherwise in LLTI’s proposal or acknowledgement, LLTI shall not be liable for any losses, damages, penalty, costs, or expenses for failure to meet any delivery or performance date. Partial deliveries will be permitted.
7. Packaging .LLTI shall pack Products for delivery in the manner LLTI deems appropriate under the circumstances. If Buyer desires special packaging or delivery, Buyer must request same from LLTI prior to placing the order. Any such special packaging or delivery shall be at Buyer’s cost, and Buyer agrees to promptly reimburse LLTI for any such costs paid by LLTI on Buyer’s behalf.
8. Limited Warranty
(a) LLTI warrants that Products manufactured by LLTI will be free of defects in workmanship or material under normal use and care for a period of one year from the date of delivery. Products purchased by LLTI from a third party for resale to Buyer will carry only the warranty extended by the original manufacturer, and LLTI has no liability for such resale Products beyond making a commercially reasonable effort to procure and ship such Products. If Buyer discovers any warranty defects and notifies LLTI thereof in writing during the warranty period, LLTI shall, at its option, promptly repair or replace that portion of the Products found by LLTI to be defective, or refund the purchase price of the defective portion of the Products. All replacements or repairs necessitated by inadequate maintenance, normal wear and tear, accident, misuse, improper installation, modification, repair, storage, or handling, or any other cause not the fault of LLTI are not covered by this limited warranty, and will be at Buyer’s expense. LLTI shall pay all reasonable transportation charges incurred in returning to LLTI any Products agreed in writing by LLTI to be defective and covered under the limited warranty set forth in this section; however, Buyer shall pay all transportation charges covering any Products returned to LLTI that do not prove to be defective or if any defect is not covered by warranty. Products repaired and parts replaced during the warranty period shall be in warranty for the remainder of the original warranty period. This warranty is provided by LLTI solely to the first commercial purchaser of the Products.
(b) LLTI warrants that Services will be performed using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and that LLTI will devote adequate resources to meet its obligations under the Agreement. LLTI will not be liable for a breach of the warranty set forth in this Section 8(b) unless Buyer gives written notice of the defective Services, reasonably described, to LLTI within 90 days of the time when Buyer discovers or ought to have discovered that the Services were defective.
(c)THE WARRANTIES SET FORTH IN THIS SECTION 8 ARE THE EXCLUSIVE WARRANTIES AND ARE PROVIDED INSTEAD OF ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED.
9. LIMITATION OF REMEDY AND LIABILITY.THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY HEREUNDER WILL BE LIMITED TO REPAIR, RE-PERFORMANCE, CORRECTION, REPLACEMENT, OR REFUND OF PURCHASE PRICE UNDER THE LIMITED WARRANTY CLAUSES IN SECTION 8. IN NO EVENT WILL LLTI BE RESPONSIBLE OR LIABLE TO BUYER AND/OR ITS CUSTOMERS FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF REVENUE, AND COST OF CAPITAL) ARISING OUT OF THE AGREEMENT (WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR OTHER FORM OF ACTION) OR ITS TERMINATION, AND IRRESPECTIVE OF WHETHER LLTI HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT, OR OTHERWISE)WILL LLTI’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE TO BUYER OF THE SPECIFIC PRODUCTS (INCLUDING SERVICES) PROVIDED BY LLTI GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
10. Limitation of Actions. In no event shall any action for any breach of the Agreement or for the breach of any warranty, or for any other loss or damage arising under the Agreement be commenced against LLTI more than 12 months after the delivery of the specific Products or performance of the specific Services giving rise to such action.
11. Quotations. All proposals by LLTI are subject to change or withdrawal without prior notice to Buyer unless otherwise specifically stated in the proposal. Proposals are subject to LLTI’s approval of Buyer’s credit.
12. Testing. Any test required by Buyer prior to delivery of Products shall, unless otherwise specifically agreed to in writing by LLTI, be performed by LLTI employing standard United States Government or LLTI’s usual testing practices and procedures for similar products in effect at the time such testing is performed.
13. Tooling. Buyer shall have the exclusive use of molds, dies, and tools for which Buyer pays a separate charge, but LLTI shall retain possession of and title to all such molds, dies, and tools. LLTI shall maintain the molds, dies, and tools paid for by Buyer in first class condition for so long as there are no changes in Buyer’s specifications or designs, provided, however, that LLTI may destroy or otherwise dispose of any such molds, dies, or tools, or any portion thereof, after five years if, during that period, no orders are received from Buyer requiring such molds, dies, or tools, or any portion thereof.
14. Storage. If Buyer requests a delay in shipment, or whenever Products or any parts thereof are ready for shipment and the contemplated shipment cannot be made for any cause referred to as force majeure, LLTI may, unless other agreement is made in writing with Buyer, store product or parts, and in that case the following conditions shall apply:
*All expenses incurred by LLTI in connection with the storage of Products, including demurrage, the cost of preparation for storage, storage charges, insurance, if placed, and handling charges shall be payable by Buyer upon submission of invoices therefor.
* LLTI shall make the Products available for shipment or, if required by prior agreement, ship the Products when conditions permit, and upon payment by Buyer of all amounts then due with respect to the Products.
*All payments due hereunder on the date of shipment shall automatically become due on the date of movement of the Products into storage or the issuance of a signed notice of receipt by LLTI.
*Title to and risk of loss of the Products shall pass to Buyer upon movement of the Products into storage, or if stored in LLTI’s facility, upon issuance of a signed notice of receipt by LLTI.
15. Permits; Fees. Buyer shall secure and pay for all governmental licenses and permits required for the execution and completion of Services.
16. Infringement Claims. If any Products or Services are to be manufactured or performed to meet Buyer’s specifications, requirements, or designs, Buyer shall indemnify and defend, at Buyer’s sole expense, LLTI, and LLTI’s affiliates and their respective directors, managers, officers, agents, employees, and representatives against any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense (including, without limitation attorney and professional fees), interest, award, judgment, fine, fee, and penalty arising out of or relating to any third party claim that the manufacture, use, marketing, sale, or distribution of such Products or Services infringes or violates any patent, trade secret, copyright, trademark, or other proprietary rights of such third party.
17. Proprietary Information. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to the Products and all documents, work product and other materials that are delivered to Buyer under the Agreement or prepared by or on behalf of LLTI in the course of performing Services (collectively, the “Deliverables”) except for any Confidential Information of Buyer or Buyer materials will be owned by LLTI. Subject to Buyer’s timely payment in full of all amounts due under the Agreement, LLTI hereby grants Buyer a license to use all Intellectual Property Rights in and to Deliverables (but not Products) free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Buyer to make reasonable use of the Deliverables.]
18. Confidential Information. All non-public, confidential or proprietary information of a party to the Agreement, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by the party to the other party, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Agreement is confidential, and shall not be disclosed or copied by the party receiving the Confidential Information under the Agreement, or used by such party other than in the performance of its obligations under the Agreement, without the prior written consent of the party disclosing the information. Confidential Information does not include information that is: (i) in the public domain; (ii) known to party receiving the information at the time of disclosure; or(iii)rightfully obtained by the party receiving the information on a non-confidential basis from a third party. The party disclosing Confidential Information will be entitled to injunctive relief for any violation of this Section by the other party. Notwithstanding the foregoing, a party may disclose the Confidential Information pursuant to applicable law, regulation, or a valid order issued by a court or governmental authority of competent jurisdiction.
19. Security Interest. Buyer hereby grants to LLTI a security interest in all Products sold to Buyer under the Agreement and any proceeds therefrom (including accounts receivable), until payment in full has been received by LLTI for such Products. Buyer agrees to execute and deliver to LLTI any document to perfect this security interest that LLTI reasonably requests.
20. Export Shipments. Upon Buyer’s request and LLTI’s written agreement, LLTI shall arrange for export shipment on behalf of Buyer. Unless otherwise provided for herein, Buyer shall pay for all fees and expenses including, but not limited to, those covering preparation of consular documents, freight, storage and warehouse-to-warehouse (including war risk) insurance, upon submission of LLTI’s invoices. LLTI shall apply to the United States Government for any required export license in acting on Buyer’s behalf under this section. LLTI shall not be liable for any claim asserted by Buyer or any third party with respect to export shipment or LLTI’s services related thereto. Other than for export licenses, Buyer shall be responsible and shall pay for timely obtaining any required authorization, such as an import license, exchange permit, or any other governmental authorization. Buyer and LLTI shall assist each other in every manner reasonably possible in securing such authorizations as may be required. LLTI shall not be liable if any authorization is delayed, denied, revoked, restricted, or not renewed. Buyer shall be required to pay for any liability arising out of such delay, denial, revocation, restriction, or non-renewal. All sales hereunder shall at all times be subject to the United States Government export control laws and regulations, and any amendments thereto. Buyer shall not make any disposition, by way of trans-shipment, re-export, diversion, or otherwise, except as said laws and regulations may expressly permit, of United States manufactured Products purchased from LLTI, other than to the country of ultimate destination specified on Buyer’s order and/or declared as a country of ultimate destination on LLTI’s invoice. On orders for shipments to countries other than the United States, payment on all sales shall be made through a Letter of Credit to be established by Buyer at its expense, including any bank confirmation charges, unless LLTI agrees otherwise. All Letters of Credit shall be in United States Dollars in favor of and acceptable to LLTI, shall be maintained in sufficient amounts and for the period necessary to meet all payment obligations, shall be divisible, irrevocable, issued, and confirmed by a bank located in the United States and of United States origin satisfactory to LLTI within 30 days after acceptance of any order by LLTI, and shall provide for payment upon presentation of those documents required by the letter of credit.
21. Governing Law. The laws of the State of Missouri (without giving effect to its conflicts of law principles), and not the United Nations Convention on Contracts for the International Sale of Goods, govern all matters arising out of or relating to the Agreement, including, without limitation, its interpretation, construction, validity, performance (including the details of performance), and enforcement. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and excluded.
22. Forum Selection. Any party bringing a legal action or proceeding against any other party arising out of or relating to the Agreement shall bring the legal action or proceeding exclusively in either the United States District Court for the Eastern District of Missouri or in any court of the State of Missouri sitting in [St. Louis County], Missouri, if there is no federal subject matter jurisdiction. Each party to the Agreement consents to the exclusive jurisdiction of the United States District Court for the Eastern District of Missouri and its appellate courts, and any court of the State of Missouri sitting in [St. Louis County], Missouri and its appellate courts, for the purpose of all legal actions and proceedings arising out of or relating to the Agreement and agrees that the exclusive choice of forum set forth in this section does not prohibit the enforcement of any judgment obtained in that forum or any other appropriate forum. Each party waives, to the fullest extent permitted by law, any objection which it may now or later have to the laying of venue of any legal action or proceeding arising out of or relating to the Agreement brought in the United States District Court for the Eastern District of Missouri or in any court of the State of Missouri sitting in [St. Louis County], Missouri, and any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
23. Force Majeure. LLTI shall not be liable for delays in performance or for non-performance due to acts of God, war, riot, fire, labor trouble, unavailability of materials, explosion, accident, compliance with governmental requests, laws, regulations, orders, or actions, or unforeseen circumstances or causes beyond LLTI’s reasonable control.
24. Assignment. Buyer shall not assign or transfer any of its rights under the Agreement, either voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law, or any other manner. For purposes of this section, “merger” refers to any merger in which Buyer participates, regardless of whether it is the surviving or disappearing corporation. For purposes of this section, a change in control is deemed an assignment. Any purported assignment of rights in violation of this section is void.
25. Successors and Assigns. The Agreement binds and benefits the parties and their respective permitted successors and assigns.
26. Subcontracting. LLTI may delegate any of its performance under the Agreement.
27. Third Party Beneficiaries. Except as specifically provided in section 16 (Infringement Claims), the Agreement does not and is not intended to confer any rights or remedies upon any person who is not a party to the Agreement.
28. Enforcement Costs. Buyer shall reimburse LLTI for any costs or expenses incurred by LLTI to collect amounts owed by Buyer under the Agreement or otherwise to enforce LLTI’s rights under the Agreement, including, but not limited to, attorney fees and costs.
29. Miscellaneous. LLTI reserves the right to correct clerical or similar errors relating to price or any other term shown in the Agreement. Invalidity or unenforceability of any term or part of the Agreement shall not affect the validity or enforceability of the remainder of the Agreement. Failure of either party to insist, in any one or more instances, upon performance of any term, covenant, or condition of the Agreement shall not be construed as a waiver or relinquishment of any right granted hereunder or the future performance of such term, covenant, or condition. LLTI’s rights under the Agreement are in addition to any other rights LLTI may have and shall not prejudice any such right.
30. Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to the purchase of the Products and Services, and supersedes all other agreements or communications, written or oral, which may be deemed to be inconsistent with it, and may not be amended or altered except by a writing signed by LLTI.