AKELA Laser Corporation (“ALC”)
TERMS AND CONDITIONS OF SALE
“Buyer” is the person or entity ordering or requesting products or services from ALC
Order Acceptance. All purchase orders or any other form (in any media) for placing orders for products are subject to these terms and conditions of sale, must be set forth in writing, and are subject to acceptance by ACL. ACL’s acknowledgment and acceptance of Buyer’s order are expressly made conditional upon Buyer’s assent to all of these terms and conditions and upon no other terms and conditions. Buyer’s assent to these terms and conditions of sale shall be conclusively presumed from the first to occur of (i) Buyer’s execution of a credit application respecting credit with ACL; or (ii) Buyer’s execution of any other document containing these terms and conditions of sale; or (iii) Buyer’s acceptance of delivery of any products ordered from ACL. ACL hereby objects to any other terms or conditions (at variance with, different from or additional to these terms and conditions) unless such terms and conditions are hereafter agreed to in writing by an officer of ACL.
No Change. No amendment to, or waiver, modification or deletion of, any of these terms and conditions shall be deemed effective unless approved and accepted in a writing signed by an officer of ACL.
Credit Approval. Orders, shipments and deliveries shall at all times be subject to the approval of ACL, which may at any time decline to accept, ship or deliver any order or perform any work except upon receipt of payment or security or upon other terms and conditions satisfactory to ACL, in its sole discretion.
Pricing Terms. All orders will be invoiced at ACL’s prices in effect at the date an order is accepted by ACL, unless otherwise agreed to in writing by ACL.
TAXES. ACL’s prices do not include any sales, use, value-added, duties, tariffs, excise or similar taxes or assessments, and all such taxes now or hereafter applicable to this transaction shall be paid by Buyer.
Payment Terms. Products will be invoiced at the time of shipment. Invoices are due in full, without set-off, net 30 days from the invoice date, unless otherwise agreed to in writing by ACL.
Service Charges. Any invoice amount not paid by its due date shall accrue a service charge of the lesser of 1% per month, or the highest rate permitted by law until paid in full. Accrued and unpaid service charges shall be added monthly to the outstanding invoice balance (and service charges shall accrue on the service charges so added), to the maximum extent permitted by applicable law.
Collection Costs. Buyer shall reimburse ACL for all collection costs, including, without limitation, reasonable attorneys’ fees and costs, paid or incurred by ACL in collecting amounts due by Buyer to ACL.
Ship Dates. ACL will use reasonable efforts to meet Buyer’s shipping or delivery date. Any shipping or delivery date is approximate and is not binding upon ACL. ACL shall not be liable for any failure to meet any specific shipping or delivery date.
Delivery/Title. Shipments are F.O.B. shipping point unless otherwise agreed to in writing by ACL. Delivery is made and title and risk of loss pass to Buyer at ACL’s shipping point upon tender of products to the shipping carrier. ACL may ship orders in installments.
Transportation/Insurance. Buyer shall pay transportation expenses and maintain, at its expense, insurance on the products from the time of tender until ACL’s receipt of payment in full for such products, naming ACL as an additional named insured. Buyer must file any claims for shipping shortages directly with the shipping carrier. Any prepaid freight will be invoiced to Buyer.
Rescheduling. Orders due to ship within 45 days shall be firm. Up to 50% of the items that are the subject of purchase orders due to ship in 46 – 90 days may be changed but in no event will be pushed out beyond the end of the following quarter. Furthermore, orders pushed out are only permitted to be moved one time. If the change relates to a pull in or accelerated delivery date, it will be subject to material availability and ACL agrees to use reasonable efforts to accommodate the pull in date. Buyer agrees to pay all fees and expenses to expedite the transportation of products and other costs associated with the rescheduled date.
Product Inspection/Acceptance. Inspection and acceptance of products is the Buyer’s responsibility.
Shortage Claims. Any claims for shortages must be made within 30 days after the delivery date.
Nonconforming/Damaged Product Claims. Any claims for non-conforming or damaged products must be made in compliance with ACL’s then-applicable return periods, procedures, terms and conditions, and policies. ACL’s prior written authorization is required to return any products claimed to be damaged or non-conforming and Buyer must prepay shipping charges. ACL will inspect and test returned product.
Limited Warranty. ACL represents and warrants that (a) it has the right to convey good title to the products sold hereunder and, upon Buyer’s full payment therefor to ACL, Buyer shall have good title in and to such products; and (b) all products manufactured by ACL and sold hereunder to original buyer are free from defects in material and workmanship occurring under normal use for a period limited to one year from date of delivery, provided there has been normal handling in transit and no improper handling by Buyer. This limited warranty does not apply to any product misused, abused, altered or used other than as set forth in the product’s operating instructions or to products improperly stored. The conditions of any tests by Buyer on products shall be mutually agreed upon, and ACL shall be notified of and may be represented at, all tests. Except for title to products, ACL makes no warranties whatsoever, express or implied, with respect to any products distributed but not manufactured by ACL, including but not limited to battery cells, and disclaims all other warranties of any kind or nature with respect to any products not manufactured by ACL.
Voiding Of Warranties, Scope Of Warranties. If Buyer transports, handles, stores, assemble, or uses, incorporates, integrates or includes the products into or as part of Buyer’s product or products in any improper manner or in a manner other than in accordance with best manufacturing practices (including, without limitation, causing electrostatic discharge contamination), or fails to have properly trained personnel with respect to the transportation, handling, storage, assembly, usage, incorporation, integration or inclusion of ACL’s products, the applicable warranties set forth in these terms and conditions of sale shall be void. The warranties set forth herein shall not apply to any products which must be replaced or fail because of Buyer’s negligence or misuse or which have been modified in any way by Buyer without the express written authorization of ACL. Unless otherwise agreed to in writing, the duration of any of the warranties set forth in these terms and conditions of sale shall not be extended, and any repair, replacement, and time necessary to repair or replace any product shall not extend any time period of any warranty. Any warranty is extended to Buyer only and may not be transferred, assigned, extended or granted in any way to any other person or entity, including without limitation, to Buyer’s customer.
No Other Warranties. The foregoing warranties are the sole and exclusive warranties for the products, in lieu of all other warranties, whether written, oral, implied or statutory (including, if any, contained in any brochure, sales literature or sample). ALC expressly disclaims in all respects and for all purposes, all other express and implied warranties of every type and kind in connection with this sale, including, but not limited to, the implied warranties of merchantability, quality, and fitness for a particular purpose. Any production or performance estimates described herein, or in any of ALC’s written proposals, are only estimates and are not intended as an express warranty. Any samples submitted by ALC to Buyer, and any descriptions, illustrations, or forecasts in trade literature, brochures, or other documentation shall not be construed as warranties as to substance, performance, color, quality, weight or dimension, and any failure to conform with such samples, descriptions, or illustrations shall not constitute any breach of these terms and conditions of sale by ALC.
Products Distributed But Not Manufactured By ALC. Buyer acknowledges that ALC is not a manufacturer of certain products distributed by ALC, including but not limited to battery cells. ALC will transfer to Buyer whatever transferable warranties and indemnities, if any, ALC receives from manufacturers of such products, including any transferable warranties and indemnities regarding intellectual property infringement. And, ALC authorizes Buyer, at Buyer’s sole expense, to assert to the maximum extent permitted by law and for Buyer’s account, all rights and powers of ALC under any applicable manufacturer’s warranty on any such product.
Exclusive Remedies For Non-Conforming Products. Except as otherwise provided herein with respect to US patent and US copyright infringement by the products manufactured by ALC, with respect to non-conforming products during any applicable warranty period, ALC’s sole obligation and liability to Buyer, and Buyer’s sole and exclusive remedy, is limited, at ALC’s election, to (i) refund of Buyer’s purchase price for such products (without interest); (ii) replacement of such products; or (iii) repair of such products (with respect to products not manufactured by ALC, only to the extent offered by the respective product manufacturer);provided in any such case, however, that (a) Buyer has complied with ALC’s then-applicable return policies and procedures; (b) Buyer gives ALC written notice of the non?conformance; (c) ALC inspects the claimed non?conforming product and determines, in its sole discretion, that the product is non?conforming in material or workmanship; (d) Buyer establishes its compliance with all conditions of the applicable warranties, including its normal use and handling of the products; and (e) Buyer returns the non?conforming product to ALC at the address specified by ALC at Buyer’s expenses for inspection and repair or replacement by ALC. ALC shall not be responsible for any labor costs in removing the non?conforming product or installing the replaced or repaired conforming product, or for dismantling, reassembling, or handling of any good, and no labor costs are included under any warranty coverage for products hereunder. If inspection, replacement or repair is made at Buyer’s premises or at the location of the product, all labor, transportation, and lodging expenses for ALC’s personnel, agent, or contractor shall be paid by Buyer. ALC shall not compensate Buyer for any expense incurred by Buyer in replacing or repairing any non?conforming product itself unless expressly authorized in writing by ALC.
Limitation Of Liability. In no event will Buyer be entitled to or ALC be liable to buyer or any other party for any incidental, indirect, special, punitive, tort or consequential damages or losses of any nature, including, without limitation, any damages for business interruption costs, loss of revenues, profits or savings, loss of data, re-procurement, removal or re-installation costs, overhead or injury to reputation or loss of customers, or for any claims asserted against Buyer by a third party arising directly or indirectly out of or in connection with the manufacture, delivery, sale, use or defect of products sold by ALC to Buyer, or the performance or non-performance of this agreement, or any agreement between Buyer and any third party, even if ALC has been advised of the possibility of such damages or losses. In no event will ALC be liable for any personal injuries or death arising directly or indirectly out of or in connection with the manufacture, use or defect of any such products or the performance or non-performance of this agreement, or any agreement between Buyer and any third party. Notwithstanding anything else contained in these terms and conditions, buyer’s recovery from ALC for any claim will not exceed Buyer’s purchase price (plus shipping charges authorized by ALC for return thereof) for the product giving rise to such claim, irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
ALC’s Indemnification for US Patent And US Copyright Infringement. As Buyer’s sole and exclusive remedy with respect to U.S. patent or U.S. copyright infringement by use of the products manufactured by ALC, ALC shall indemnify, defend and hold harmless Buyer from and against any and all costs and damages awarded against Buyer in any lawsuit, arbitration or similar proceeding with respect to any actual violation or infringement upon any US patent or US copyright of any third party, provided that Buyer provides to ALC prompt written notice and complete support, including, without limitation, documentation and witnesses as requested by ALC, and ALC shall have complete control of any such claim, suit, action or proceeding, including authority to settle. As part of Buyer’s sole and exclusive remedy, ALC shall, at its option, redesign the products to make them non-infringing, or deliver non-infringing products in replacement of existing products, or procure for Buyer and users of products the right to continue to sell and/or use the products, or refund the purchase price of the infringing products upon return of said products to ALC, as specified by ALC. This represents ALC’s entire and exclusive obligation, and Buyer’s sole and exclusive remedy, with respect to any such infringement by the products.
No Reverse Engineering. Buyer covenants and agrees not to reverse engineer or copy any products sold hereunder. Buyer covenants and agrees not to disclose or use for any purpose not contemplated by these terms and conditions of sale any of ALC’s confidential, proprietary or product related information.
Buyer’s Indemnification. Buyer shall indemnify, defend and hold harmless ALC and its officers, directors, employees, agents, shareholders, affiliated companies, and their respective successors and assigns, from and against any and all claims relating to, in connection with or arising from: (i) any breach by Buyer of any provisions these terms and conditions; (ii) any actual or alleged violation or infringement upon any US patent or US copyright of any third party arising from compliance with Buyer’s designs, specifications or instructions; and (iii) any unauthorized modification, alteration, adaptation or use of the products and/or installation of any device, instrument or equipment part thereof in or on the products, the use or combination of which has not been approved, including, without limitation, any such damage, injury or contamination whatsoever arising out of any use in connection with any nuclear facility or activity, military application or medical device.
Set Off. ALC is authorized to apply toward any monies due to ALC hereunder any sums now or hereafter owned by ALC or any affiliate of ALC to Buyer or any affiliate of Buyer.
Order Cancellation. Buyer may cancel this order only upon written notice and payment to ALC of cancellation charges and costs incurred or paid by ALC, including, without limitation, direct and indirect expenses, including all on?hand inventories of components purchased to support Buyer’s order(s), prior commitments in reliance on such order, including any cancellation, restocking or transportation charges associated with cancelling any order with a supplier, and ALC’s profits.
Force Majeure Delay. ALC shall be excused from any delay or failure to perform due to any actions, events, conditions, inactions or any other cause beyond ALC’s control in the reasonable operation of its business.
Exports. All sales, shipments, and sharing of technical data, both domestically and internationally, by ALC, its divisions, and subsidiaries, are done so in accordance with all applicable United States laws and regulations, including, but not limited to, the Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”), and the regulations of the U.S. Department of the Treasury, and Office of Foreign Assets Control (“OFAC”). Buyer confirms that it is not located in (or a national resident of) any country under United States or United Nations embargo or sanction, not identified on any U.S. Department of Commerce Denied Persons List, Entity List, U.S. Department of State Debarred Parties List, the OFAC List of Specialty Designated Nationals and Blocked Persons, and not directly or indirectly involved in the financing, commission or support of terrorist activities or in the development or production of nuclear, chemical, biological weapons, or in missile technology or unmanned aerial vehicle (“UAV”) programs as specified in the EAR. Upon request, Buyer agrees to provide ALC with all information pertaining to the actual routing of products to be exported and the intended use thereof. Any routing, diversion and/or use of the products contrary to the laws and regulations of the United States or the country in which they are being used is prohibited.
Legal Action. Any lawsuit or other action brought by Buyer against ALC, whether based on contract, tort or any other legal theory of recovery, must be commenced within one (1) year from the date when the alleged cause of action accrued.
Legal Fees/Costs. If ALC institutes a lawsuit or any other action against Buyer to collect any monies due ALC hereunder or pursuant to any order for materials or services, or if ALC successfully defends against a lawsuit or any other action instituted by Buyer against ALC hereunder, whether based on contract, tort or any other theory, then ALC shall be entitled to, and Buyer shall reimburse ALC for, ALC’s costs and expenses, including without limitation, reasonable attorneys’ fees and costs, paid or incurred in connection with any such collection efforts, lawsuit or action.
Governing Law. These terms and conditions of sale shall be governed by and construed in accordance with the laws and decisions of the State of New Jersey, without regard to its conflicts of law principles.
Venue and Jurisdiction. Venue for any legal action shall be deemed proper in Monroe County, New Jersey, U.S.A. and Buyer hereby irrevocably consents to the jurisdiction of such courts.
No Assignment. No rights, duties, agreements or obligations hereunder may be assigned or otherwise transferred (including without limitation by or through sale of equity, merger, consolidation or change of control) by Buyer, directly or indirectly (including by or through any merger, share sale or exchange or otherwise), without ALC’s prior written consent, and any attempted or purported assignment without such consent will be void.
Successors/Assigns. These terms and conditions shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Entire Contract. These terms and conditions constitute the entire understanding between the parties with respect to the subject matter hereof, superseding all negotiations, prior discussions, and preliminary agreements if any. Neither of the parties shall rely upon any promises or representations made by the other or any third party, whether written or oral, including any advertising material, as an inducement to enter into these terms and conditions, except as may appear herein.
Non-Waiver By ALC. No waiver of any term, provision or other condition of these terms and conditions by ALC, whether by conduct or otherwise, in any one or more instances, shall be deemed or construed as a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition hereof.
Severability. If any term, covenant or condition of these terms and conditions, or the application thereof to any person or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of these terms and conditions or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant or condition of these terms and conditions shall be valid and shall be enforced to the fullest extent permitted by law.
USE RESTRICTION. Products sold by ALC hereunder are not intended for use in connection with any nuclear facility or activity, military application or medical device (as defined by the Food and Drug Administration), and ALC disclaims any and all responsibility whatsoever with respect to any such use.
COMPLIANCE. Products delivered by ALC hereunder are produced in compliance with the Fair Labor Standards of 1938, as amended and applicable. ALC shall comply with applicable Federal, state and local laws and regulations in effect as of the date of any quotation which relate to (i) equal employment opportunity (including the set of paragraphs appearing in 202 of Executive Order 11246, as amended), (ii) workmen’s compensation and (iii) production in ALC’s manufacturing facilities of products furnished hereunder. Price and, if necessary, delivery will be equitably adjusted to compensate ALC for the cost of compliance with any other laws or regulations.
SOLVENCY. Buyer hereby represents and warrants to ALC that Buyer is solvent (on a balance sheet basis) and has the unrestricted ability to pay its debts in the ordinary course of business as and when they are due and payable. Buyer acknowledges and agrees that contemporaneously with the receipt by ALC from Buyer of any order or request to purchase products, goods, or services, (i) Buyer shall be deemed to have remade and reaffirmed in writing Buyer’s solvency representation and warranty set forth above; and (ii) such written solvency representation and warranty, in addition to being remade as set forth herein, shall be deemed for all purposes to be incorporated into said order or request as if it was fully set forth in writing therein, it is the express intention of the parties to grant to ALC the maximum right of reclamation available at law or in equity either under applicable state law (i.e. the Uniform Commercial Code) or in any bankruptcy or solvency proceeding.