Terms & conditions

The following terms and conditions govern the sale of Luma Optics(the “Seller”) products listed on this invoice (the "Products") whether made pursuant to oral or written orders to its representatives, salespersons, or the home office, Sebastopol CA. Acceptance of orders, whether oral or written, is based on the express condition that Buyer agree to all of the terms and conditions (“Terms and Conditions”) expressed herein. These terms and conditions represent the final and complete agreement of the parties, and no terms or conditions in any way modifying or changing the provisions stated herein, including usage of the trade and course of dealing or performance, shall be binding upon Seller unless made in writing and signed and approved by an authorized person at the home office of Seller. No modification of any of these terms shall be affected by Buyer’s purchase order, shipping request, or similar forms containing printed terms and conditions additional to or different from the terms herein, and any terms or conditions proposed by Buyer that add to, vary from, or conflict with the terms herein are hereby rejected.

1.1 All orders are subject to Seller’s final approval. Failure of Seller to object to provisions or pricing contained in any purchase order or any other communication from Buyer (including, without limitation, penalty clauses on labor charges) does not constitute acceptance of such provisions and will not result in the issuance of any credits.

1.2 The acceptance of the Buyer's purchase order is contingent upon written confirmation by Seller in the form of a letter or email.

1.3 The acceptance of Buyer's order is expressly made conditional upon Buyer's assent to the terms and conditions stated herein. In the absence of any written notification to the contrary, and by virtue of the issuance of a purchase order, Buyer shall be deemed to have accepted terms and conditions as stated herein. Seller’s failure to object to provisions contained in Buyer's forms shall not be deemed a waiver of the provisions of Seller's terms and conditions. Any terms and conditions contained in any purchase order or other document, that are not consistent herewith, or contain additional or different terms, shall be deemed rejected/disregarded absent a written agreement by Seller to the contrary.

1.4 The acceptance of Buyer's order is expressly made conditional upon Buyer's assent to the terms and conditions stated herein. In the absence of any written notification to the contrary, and by virtue of the issuance of a purchase order, Buyer shall be deemed to have accepted terms and conditions as stated herein. Seller’s failure to object to provisions contained in Buyer's forms shall not be deemed a waiver of the provisions of Seller's terms and conditions. Any terms and conditions contained in any purchase order or other document, that are not consistent herewith, or contain additional or different terms, shall be deemed rejected/disregarded absent a written agreement by Seller to the contrary.

1.5 All additions, deletions, or other changes to an order are subject to all Terms and Conditions herein.

2.1 In the event of a conflict between a buyer’s written order and Seller’s drawing or specification sheet marked "approved," Seller’s drawing or specification sheet shall prevail.

2.2 Seller will not be bound by general or blanket instructions not contained with Buyer's order. Each transaction must be accompanied by full instructions on the order itself.

3.1 Full payment must be made within thirty (30) days from the date of the invoice.

3.2 Buyer shall make payments as specified herein and Seller may suspend shipment or delivery until such payments are made.

3.3 If, in the opinion of Seller, the financial condition of Buyer becomes impaired or unsatisfactory, Seller may at any time limit or cancel the credit of Buyer and, before delivering additional goods to Buyer, require Buyer to pay in cash for such goods and to pay for goods theretofore delivered. Failure by Buyer to make any such payments within ten (10) days after demand in writing shall constitute a breach of this agreement by Buyer. Approval of credit of one or more deliveries shall not be deemed a waiver hereof.

3.4 If any shipment made in accordance with Buyer's instructions is refused for whatever reason, Buyer shall be responsible for payment of such Products, in accordance with the terms hereof, as though such Products have been accepted at the time of original delivery. Buyer shall also be responsible for reasonable storage, handling and delivery charges and shall pay such charges as invoices are rendered.

3.5 Seller shall be entitled to reimbursement for all costs and expenses (including reasonable attorneys' fees) incurred by it in connection with collection of any amounts for goods sold in the event payment therefore shall not be made when due.

3.6 If Buyer notifies Seller not to deliver Products after such Products have been produced by Seller in accordance with the terms of sale or Buyer's prior instructions, then Buyer shall pay reasonable storage charges until such Products are delivered and accepted.

4.1 Seller shall retain a security interest in all goods sold until the full amount of the purchase price (including any service charges) has been paid by Buyer. In the event Buyer shall default in payment of the purchase price, Seller shall have the right, in addition to and not exclusive of any other rights it may have under the Uniform Commercial Code or otherwise, to enter upon the premises where the goods are located and retake possession thereof, without notice, free from any claims of Buyer. At the request of Seller, Buyer will join Seller and any assignee of Seller in preparing, executing and causing to be filed any and all financing statements pursuant to the Uniform Commercial Code. Buyer hereby authorizes Seller and any assignee of Seller to file a financing statement signed only by Seller or such assignee in all places where necessary or appropriate to perfect any security interest which Seller or such assignee might be deemed to have in all jurisdictions where such authorization is permitted by law.

5.1 Seller will use its discretion in routing all shipments and reserves the right to select carrier and truck size. If any shipment made in accordance with Buyer’s instructions shall incur additional labor or carrier costs, such costs shall be paid by Buyer as invoices are rendered.

5.2 The shipment date, if any, mentioned in any Seller written confirmation is Seller’s best approximation of the probable shipment date and is not a fixed or guaranteed shipment date. Shipment of Products is subject to any and all delays due to any condition or happening whatsoever beyond Seller’s control, including but not limited to strikes, fires, riots, wars, acts of God, inability to obtain materials, governmental regulations or other conditions. Seller shall not be responsible for any damage or loss resulting, whether directly or incidentally, from delayed shipments or its inability to ship as above.

6.1 All domestic shipments are made FCA, Shipping Point, (freight prepaid and added to invoice). Risk of loss and title for Products shall pass to Buyer, and legal delivery is completed, upon Seller’s delivery of these items to the carrier for shipment to Buyer at the Shipping Point. “Shipping Point” means the “shipped from” address on Seller’s sales or shipping documentation. “Freight prepaid and added to invoice” means that Seller pays the shipping charges and add such charges to Buyer’s invoice.

6.2 All international shipments are made FCA, Shipping Point, Incoterms®2010. Risk of loss and title for Products shall pass to Buyer, and legal delivery is completed, upon Seller’s delivery of these items to the carrier for shipment to Buyer at the Shipping Point. “Shipping Point” means the “shipped from” address on Seller’s sales or shipping documentation.

6.3 Multiple releases for single orders shall be at Seller’s discretion and shall be invoiced separately.

6.4 Method of packaging is at Seller’s discretion.

6.5 All Products are carefully inspected prior to shipment. It is the responsibility of Buyer to inspect all items at the time of delivery and note any damage or shortage on the bill of lading.

6.6 For Products shipped under the terms of Paragraph 6.1 the Buyer must report concealed damage claims to the Seller within fifteen (15) days of receipt of shipment, the failure of which will preclude Buyer from making any claims for a refund or replacement of the damaged Product(s).

6.7 If the shipment requires special delivery needs requested by the Buyer (early morning delivery, lift gate truck, specialized pallets, etc.), the added cost for those needs will be prepaid by Seller and billed directly to Buyer.

7.1 EXCEPT AS EXPRESSLY SET FORTH IN ITS STANDARD LIMITED WARRANTY, AS IT MAY BE AMENDED BY SELLER FROM TIME TO TIME, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AGAINST INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR ANY WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE OR MERCHANTABILITY. SELLER’S STANDARD WARRANTY CAN BE FOUND AT www.lumaoptics.com

7.2 IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PRESENT OR PROSPECTIVE BUSINESS, PROFITS, EXPENDITURES, INVESTMENTS OR OTHER COMMITMENTS, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, FOR LOSS OF DATA, COST OF SUBSTITUTE PRODUCTS, COST OF CAPITAL, OR FOR THE CLAIMS OF ANY THIRD PARTY, OR FOR ANY OTHER REASON WHATSOEVER, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. ANY DAMAGES THAT SELLER IS REQUIRED TO PAY FOR ANY AND ALL CAUSES, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, OR OTHERWISE, AND REGARDLESS OF THE FORM OF THE ACTION IN THE AGGREGATE, SHALL BE LIMITED IN AMOUNT TO THE PAYMENTS MADE BY THE BUYER TO SELLER FOR THE SPECIFIC PRODUCTS TO WHICH SELLER’S LIABILITY RELATES.

8.1 All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know- how, data, results 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, in and to all documents, products, work product and other materials that are delivered and/or manufactured by Seller under this sales order shall be owned by either Seller or its licensors, as applicable.

8.2 No license is granted hereunder by either party to use its marks, trademarks, service marks, tradenames, or logos. Any such use, including without limitation use for publicity, marketing, client reference or other related purposes, must be explicitly permitted in a separate written license from the owner, executed by duly authorized representatives of both parties. All products are sold under trademark and Buyer cannot alter, modify or infringe upon such trademark.

8.3 Seller retains all right, title and interest in and to all of its intellectual property.

8.4 Pursuant to 17 U.S.C. § 512, as amended by Title II of the Digital Millennium Copyright Act (the “Act”), Luma Optics will terminate the account of any customer or vendor who uses their privileges to unlawfully transmit copyrighted material without a license, valid defense, or fair use privilege. Upon proper notification by the copyright holder or its agent to Luma Optics, and subsequent confirmation through a court order or an admission by the customer of unlawful infringement, Luma Optics will terminate the infringing customer’s account. Luma Optics may also, at its sole discretion, terminate a customer’s account privileges prior to such confirmation if it has a good faith belief that infringement has occurred.

9.1 Buyer will represent, display and demonstrate Seller’s product and services fairly at all times, and will refrain from knowingly making any false or misleading statements, claims or representations with respect to Seller, Seller’s products or services, or any of Seller’s other resellers, partners or affiliates. Buyer will maintain high standards of professionalism in marketing Seller’s products and services, and will refrain from any unethical conduct or any other conduct that tends to damage the reputation of Seller.

9.2 Buyer will promptly notify Seller of all questions, comments and complaints with respect to the Products that it may have or which it may receive from end-users (if not Buyer); and Buyer will forward promptly to such end-users, at the request of Seller, any materials supplied by Seller relating to the Products, including but not limited to warranty and other Product information.

10.1 Buyer shall be liable for its own compliance with any and all laws, rules and regulations applicable to the performance of its several obligations hereunder, including, but not limited to (i) the actions of its employees and the conduct and operation of its business, (ii) the laws and regulations  governing  data  privacy and the protection of personally identifiable information, and (iii) compliance with all applicable anti-corruption laws and regulations, including, but not limited to the False Claims Act (or successor legislation) and the Foreign Corrupt Practices Act (or successor legislation). To the extent applicable to its performance hereunder, Buyer agrees to comply with all laws and regulations governing embargoes and sanctions, of the United States, France or the European Union, and to obtain all licenses, shipping documentation and authorizations required for the resale, export or re-export of any goods, services or technologies, and to supply evidence thereof to Seller upon request. Buyer’s policies and practices shall explicitly prohibit the improper payment or provision of anything of value, directly or indirectly, to any public official or to any agent or consultant of any public entity or official, foreign or domestic. Buyer shall also have in place policies to ensure that normal and customary business entertainment and expenses or the provision of other things of nominal value are bona fide and legitimate under applicable law. Buyer shall indemnify Seller from and against any loss, damage or liability resulting from Buyer’s failure to comply with the terms of this paragraph.

11.1 Buyer shall comply with the most current import and export control and sanctions laws, regulations and orders applicable at the time of any import, export, re-export, transfer or provision of products. In particular, Buyer shall not (i) supply goods, services or technologies to any natural or  legal person, organization or entity (“Prohibited Party”) that is subject to embargo, sanction, or other similar restrictions, including but not limited to denied parties status, by the United States, France,  or the European Union (“Restrictions”), (ii) export or re-export any goods, services or technologies to a banned country, or one which is subject to Restrictions, without having obtained all necessary authorizations from applicable French, European or American authorities, as the case may require, (iii) export or re-export any goods, services or technologies, for the purpose of using them in sectors that are banned or subject to Restrictions (iv) export or re-export to, or engage in financial transactions with, any such party, organization or entity, or to any Prohibited Party, organization or entity with regard to which there is credible reason to believe that they fail to fully comply, or intend not to comply, with the Restrictions. Seller shall be entitled to audit Buyer to verify compliance with this Section. Without limiting the foregoing, Buyer shall be responsible for providing accurate and complete customs documentation to the extent required and, notwithstanding anything to the contrary, Seller shall have the right to verify the completeness and accuracy of any such required documentation. Buyer shall indemnify Seller from and against any loss, damage or liability resulting from Buyer’s failure to comply with the terms of this paragraph.

12.1 Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; fire; terrorism or other criminal conduct or threats thereof; flood; weather; sabotage; strikes, or labor or civil disturbances; governmental requests, restrictions, laws, regulations, orders or actions; unavailability of or delays in utilities or transportation; default of suppliers; or unforeseen circumstances or any other events or causes beyond Seller’s reasonable control.  Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the remainder of the Terms and Conditions shall otherwise remain unaffected as a result of the foregoing.

13.1 All additions, deletions or other charges to an order are subject to all Terms and Conditions herein.

13.2 Pricing is subject to change without notice and is exclusive of sales or like taxes unless otherwise noted.

13.3 Possession of a price list is not in itself an offer to sell.

13.4 The relationship between the parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

13.5 These Terms and Conditions shall be interpreted and construed in accordance with the laws of the State of California, U.S.A, without regard to its choice of law principles. The jurisdictional venue for any legal proceedings involving these Terms and Conditions or the transaction contemplated herein shall be held in any applicable state or federal court located in Sonoma County, California, U.S.A.  The application of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods to these Terms and Conditions are expressly excluded.

13.6 No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgement or publication are subject to correction.

13.7 Buyer shall not assign its rights or delegate its duties hereunder or any interest therein or any rights hereunder without the prior written consent of Seller, and any assignment without such consent shall be void.