Terms and Conditions of Sale
All sales made by LumeDEL LLC (“Seller”) to the Buyer (“Buyer”) are expressly conditioned on Buyer’s acceptance of the following terms and conditions. Seller will not be bound by any terms of Buyer’s Purchase Order or other acknowledgement form that are inconsistent with the terms herein. These terms and conditions may only be amended or waived in writing signed by an authorized representative of Seller. Neither Seller’s commencement or performance nor delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions.
Request for Quotation
Quotations by Seller, unless otherwise stated in them, are valid for 30 days from the date of the quotation. Any proposal or quotation issued by Seller does not constitute an offer to supply the Products. All proposals or quotations issued by Seller are subject to confirmation and are non-binding.
Order and Order Acceptance
All orders for Products shall be made by written purchase order sent to Seller, or by fax, email, or via the web. All purchase orders shall reference these terms and conditions. No purchase order shall be binding upon Seller until accepted in writing by Seller, and Seller shall have no liability to Buyer with respect to purchase orders that are not accepted. Buyer shall submit purchase orders to Seller in accordance with Seller’s lead times then in effect. Once Seller accepts a purchase order, a Sales Order will be issued.
Pricing
All prices are subject to change without notice. Unless otherwise agreed to by Seller in writing, all prices for the sale of Products for delivery in the United States and all countries are stated in and to be paid in United States Dollars.
Sales and Similar Taxes
Quoted pricing does not include any federal, state, or local taxes, assessments or duties. Buyer shall promptly pay the amount of any present or future sales, use, or other similar tax (and all applicable interest or penalties) applicable to the sale of the Products hereunder, whether such amount is specified in the Sales Order, subsequently determined or recalculated. Buyer shall promptly pay or reimburse the Seller for payment of any such taxes on demand. In lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities.
Payment Terms
For a U.S. domestic Buyer, unless otherwise specified by Seller, payment terms are Net 30 days, 1% discount if paid within 10 days of the date of the invoice.
Seller reserves the right to require alternative payment terms, including without limitation letter of credit or payment in advance, in particular for orders for export from the United States. Shipment is based on availability of stock after payment is received.
Payment Options
The following payment options are at the option and in the discretion of Seller.
- Check or Money Order: Must be made in US dollars and drawn on a US bank.
- Credit Card: MasterCard, Visa, Discover, American Express.
- Bank Wire Transfer: A $25.00 processing fee is included in the shipping/handling charge for all quotes paid by wire transfer.
Buyer will pay Seller’s reasonable attorneys’ fees incurred in collecting past due amounts owed. Any dispute arising out of or related to the Sales Order shall be brought exclusively in the courts of the State of New Hampshire, and New Hampshire law should govern the sales transaction. Any balances which are unpaid after thirty (30) days are subject to a one and a half percent (1.5%) interest charge per month, or the maximum amount permissible by law, whichever is greater.
Cancellation
After acceptance by the Seller, the Buyer’s order is not subject to cancellation, change, reduction in amounts, or suspension or delay of shipment, except with the Seller’s written consent. Cancelled orders consented to by the Seller are subject to cancellation charges, based upon all expenses incurred by the Seller up to the time of cancellation. This includes excess inventory of stock items that have been specifically allocated to the Buyer and exceed normal Seller inventory levels for a period. Seller may cancel the order in the following cases: the Seller’s costs have exceeded selling price to Buyer; the Seller is unable to provide product due to factors beyond the Seller’s control.
If shipments are delayed by Buyer, payment shall become due on the date when Seller is prepared to make shipment unless otherwise agreed to in writing by Seller at time of incident. Products held for the Buyer shall be at the risk and expense of the Buyer.
Specifications Provided by the Buyer
Buyer shall indemnify, defend, and hold Seller, and its subsidiaries and affiliates, and their respective officers, directors, and employees, harmless from any liabilities and expenses, including reasonable attorneys’ fees, to the extent resulting from a claim alleging that any Product sold by Seller infringes the copyright, trademark, patent, trade secret or other intellectual property right of a third party due to specifications or requirements provided by Buyer.
Changes
Buyer at any time, by a written order, may request changes within the general scope of this contract; however, no changes are effective without written consent of Seller. If any such changes cause an increase or decrease in the cost of, or the time required for, any part of the work hereunder, an equitable adjustment shall be made by Seller by written Sales Order amendment to the price or delivery schedule, or both.
Suspension of Work
Seller agrees to use its best efforts to meet scheduled delivery requirements. Seller shall not be liable for any delay in performance or in the shipment or delivery of goods or for any damages or excess costs suffered by Buyer by reason of such delay if such delay is beyond the Seller’s and/or the Seller’s subcontractors’ or suppliers’ reasonable control. Seller will, within a commercially reasonable time, notify Buyer of any schedule delay.
Delivery, Shipment, and Acceptance
All Products are shipped F.O.B. shipping point or Ex-Works from origin, unless otherwise specified. Buyer is responsible for any loss or damage to shipments after Seller has delivered the Products to any common carrier. Unless otherwise agreed in writing, prices do not include the cost of freight or handling, or cost or charges for insurance or any production, sales, use, transfer, transportation, letter of credit fee, excise or other tax, tariffs, or custom duties. Diversion contrary to U.S. law is prohibited.
Seller shall use reasonable efforts to deliver Products at the times specified in the Sales Order, provided, however, that all delivery dates are estimates and deliveries may be made in installments. All Products delivered will be packaged in accordance with Seller’s standard practice or mutually agreed upon method and include itemized packing slips. Buyer shall accept or reject Products, including “Custom” products, as promptly as feasible, but in any event within thirty (30) days after receipt, for failure to substantially conform to Seller’s published specifications. If Buyer fails to notify Seller in writing of its rejection and reasons thereof within such period, Buyer shall be conclusively deemed to have irrevocably accepted the Products.
If the products are manufactured specifically for Buyer (“Custom” order), Seller can deliver between 90% and 110% of the total order quantity of each product being ordered.
Limited Warranty
Seller’s sole obligation and liability under this warranty is limited to the repair or replacement at its factory, at Seller’s option, of any such product which proves defective within one year after the date of original shipment from Seller’s factory and is found to be defective in material or workmanship by Seller’s inspection. Service and equipment repair warranty is for 30 days after service or repair and replacement parts warranty is for 90 days.
Any technical advice, information, suggestions, or recommendations given to Buyer by Seller with respect to the product or the suitability or desirability of the product for any particular use or application are based solely on the general knowledge of Buyer, are intended for information guidance only. Buyer takes sole responsibility for the use and applications to which the product is put and shall conduct all testing and analysis necessary to validate the use and application to which Buyer puts the product.
Returns
Return of products for replacement, credit or refund shall be at the sole discretion of Seller. Prior to returning any product, Buyer shall obtain a Return Material Authorization (RMA) number from Seller’s Customer Service Department and mark the outside of all packages with the RMA number.
Buyer will ship the defective or non-operational Product to Seller. Buyer is responsible for shipping cost. Upon receipt of the returned Product, Seller will test the Product to verify the defective status of the component within the terms of the Limited Warranty and communicate such results to Buyer. Seller will either send a repaired or replacement Product after verifying that the Product returned under the RMA# is in fact defective within the terms of the Limited Warranty. Seller is responsible for shipping costs of replacement Product to the Buyer.
Export Control Laws
Buyer acknowledges that the Products obtained from Seller are subject to export or import laws, legislation, regulations, and restrictions. These may include, the U.S. International Traffic in Arms Regulations, the U.S. Export Administration Regulations, the Office of Foreign Assets Control Regulations, the European Union Dual Use Export Control Regime and any other national legislation related to trade controls. Buyer warrants that it, its subsidiaries, and affiliates will not directly or indirectly export, re-export, transfer or release any Products or direct product thereof to any destination, person, entity, or end use prohibited or restricted under applicable laws, regulations, and legislation. This includes, but is not limited to, activities that are directly or indirectly related to the proliferation of nuclear, chemical, or biological weapons, or rockets, missiles, or unmanned aerial vehicles, unless specifically authorized under all applicable export control laws and regulations. Buyer will defend, indemnify, and hold Seller harmless for any damages or costs to Seller arising from Buyer’s failure to comply with these terms.
United Nations Convention
Buyer expressly agrees that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions of Sale.
Assignment
These Terms and Conditions of Sale and the rights of Buyer hereunder may not be assigned in whole or in part without the prior written consent of Seller.
Invalidity
If any provision of these Terms and Conditions of Sale is held invalid by any governing law or regulation or by any court having valid jurisdiction, such invalidity will not affect the enforceability of other provisions.
Governing Law/Entire Agreement
Buyer acknowledges and agrees that these Terms and Conditionals of Sale shall be governed by and construed in accordance with the laws of the jurisdiction from where the products are shipped, without reference to any conflict of law rule. Buyer and Seller expressly agree that any disputes under these Terms and Conditions of Sale shall be resolved exclusively in the courts located within such governing jurisdiction. These Terms and Conditions of Sale constitute the entire agreement between Buyer and Seller with respect to Buyer’s purchase of the Products and supersedes all prior agreements and understandings with respect to such purchase and may not be changed or amended or superseded by conflicting terms and conditions submitted by Buyer.
Force Majeure
Seller shall not be liable for, nor shall Seller be considered in breach of these Terms and Conditions of Sale due to, any failure to deliver or delay in delivering or failure to perform its obligations under these Terms and Conditions of Sale as a result of a cause beyond its reasonable control, including, but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, riot or terrorist action, embargo, epidemic or disease, pandemic, fire, flood, earthquake, storm or other like event, disruption or outage of communications, power or other utility, labor dispute, strike, shortage, unavailability of materials, or failure or omission of a supplier, carrier or subcontractor, or any other cause, whether similar or dissimilar to any of the foregoing.