Terms and Conditions
Terms and Conditions for Optik LED, Inc (Optik LED) 1003 Rio Grande St. Austin, TX 78701
1. OFFER, CONFIRMATION OR AGREEMENT
These terms and conditions of commercial sale of Optik LED, Inc (Optik LED) are (the “Terms and Conditions”) apply to and form an integral part of all quotations and offers made by Optik LED, Inc. all acceptances, acknowledgements and confirmations by Optik LED of any orders by Buyer and any agreements (“Agreements”) regarding the sale by Optik LED and purchase by Buyer of goods and services
(“Products”), unless and to the extent Optik LED explicitly agrees otherwise.
Any terms and conditions set forth on any document or documents issued by Buyer either before or after issuance of any document by Optik LED setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by Optik LED, and any such terms shall be wholly inapplicable to any sale made by Optik LED to Buyer and shall not be binding in any way on Optik LED.
Optik LED offers are open for acceptance within the period stated by Optik LED in the offer or, when no period is stated, within thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by Optik LED at any time prior to the receipt by Optik LED of Buyer’s acceptance thereof.
Prices in any offer, confirmation or Agreement are in USD, based on delivery ex-local warehouse or as otherwise designated by Optik LED, unless agreed otherwise in writing between Buyer and Optik LED and include the rates of exchange, freight, insurance and customs or duty ruling at the time of quotation. The quoted prices may be varied by the same amount by which the Seller’s actual costs have been varied as a result of any change in the said rates.
All published prices are subject to alteration without notice and the invoiced price will be based on the Price List current at date of invoice.
Optik LED will add taxes where Optik LED is required or enabled by law to pay or collect them and these will be paid by Buyer together with the price.
a. Unless agreed otherwise between Optik LED and Buyer in writing, Optik LED may invoice Buyer for the price of the Products delivered upon delivery of the Products in accordance with the applicable INCOTERM. Net payment is due within ten (10) days of date of statement unless agreed otherwise between Optik LED and Buyer in writing. All payments shall be made to the designated Optik LED address. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by Optik LED. In addition to any other rights and remedies Optik LED may have under applicable law, interest will accrue on all late payments at the rate of eighteen percent (18%) per annum or the applicable statutory rate, whichever is higher and to the extent permitted by applicable law, from the due date until payment in full.
b. All deliveries of Products agreed to by Optik LED shall at all times be subject to credit approval of Optik LED. If, in Optik LED’s judgment, Buyer’s financial condition at any time does not justify production or delivery of Products on the above payment terms, Optik LED may require full or partial payment in advance or other payment terms as a condition to delivery, and Optik LED may suspend, delay or cancel any credit, delivery or any other performance by Optik LED.
c. In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Optik LED shall have the right to refuse performance and/or delivery of any Products until payments are brought current and Optik LED may suspend, delay or cancel any credit, delivery or any other performance by Optik LED. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law.
4. DELIVERY AND QUANTITIES
a. Products shall be delivered ex-local warehouse or as otherwise designated by Optik LED, unless otherwise agreed in writing. Delivery dates communicated or acknowledged by Optik LED are approximate only, and Optik LED shall not be liable for, nor shall Optik LED be in breach of its obligations to Buyer, for any delivery made within a reasonable time before or after the communicated delivery date. Optik LED agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the such delivery date.
b. Buyer will give Optik LED a written notice of failure to deliver with in (10) days. Optik LED will then have thirty (30) day’s , to remedy.
cancel the affected and undelivered portions of the Agreement.
c. Title in the Products shall pass to Buyer upon payment in full of the purchase price in respect thereof. Risk of loss in the Products shall pass to Buyer upon delivery.
d. If Buyer fails to take delivery of Products ordered, then Optik LED may deliver the Products in consignment at Buyer’s cost.
e. In the event Optik LED’s production is curtailed for any reason, Optik LED shall have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result may sell and deliver to Buyer fewer Products than specified in the Agreement, as the case may be.
f. Minimum Order – Unless varied by mutually agreed trading terms, the minimum order value is $2,500. A surcharge of $30 will apply to each invoice of less than $100.
g. Carton Quantity/Minimum Order Quantity (“MOQ”) – The carton quantity stated in Optik LED Lighting Trade Price List is the minimum order quantity per item. A 25% surcharge will be applied to each item where the order is less than the minimum order quantity. Notwithstanding, Optik LED reserves the right not to supply less than the minimum order quantity where breaking a carton could lead to product damage and/or impede the logistics process.
Optik LED shall not be liable for any failure or delay in performance if:
(i) such failure or delay results from interruptions in the Product manufacturing process; or
(ii) such failure or delay is caused by Force Majeure as defined below or by law.
In case of such a failure as set forth above, the performance of the relevant part(s) of the Agreement will be suspended for the period such failure continues, without Optik LED being responsible or liable to Buyer for any damage resulting therefrom.
The expression “Force Majeure” shall mean and include any circumstances or occurrences beyond Optik LED’s reasonable control – whether or not foreseeable at the time of the Agreement – as a result of which Optik LED cannot reasonably be required to execute its obligations including force majeure and/or default by one of Optik LED’s suppliers. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Optik LED to extend for a period of three (3) consecutive months), Optik LED shall be entitled to cancel all or any part of the Agreement without any liability towards Buyer.
6. RIGHTS IN SOFTWARE, DOCUMENTATION AND INTELLECTUAL PROPERTY
Subject to the provisions set forth herein, the sale by Optik LED of a Product implies the non-exclusive and non-transferable limited license to Buyer under any of Optik LED’s and/or its affiliates’ intellectual property rights (“Optik LED’ IPR”) in the territory to use and resell Products as sold by Optik LED to Buyer.
To the extent that software and/or documentation is embedded in or delivered with a Product, the sale of such Product shall not constitute the transfer of ownership rights or title in such software and/or documentation to Buyer, but, subject to the provisions set forth herein, shall only imply a non-exclusive and non-transferable license to Buyer under Optik LED intellectual property rights to use such software and/or documentation in conjunction with and as embedded in or delivered with the Products as supplied by Optik LED in the territory.
Buyer shall not: (a) modify, adapt, alter, translate, or create derivative works from any software residing in or provided by Optik LED in conjunction with any Products; (b) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software; (c) merge or incorporate such software with or into any other software; or (d) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for such software without written authorization from Optik LED except as explicitly allowed under applicable law. Buyer shall reproduce, without any amendments or changes thereto, any proprietary rights legends of Optik LED and/or its affiliates or its third party suppliers in any software or documentation provided by Optik LED. License terms of third parties may apply.
7. LIMITED WARRANTY AND DISCLAIMER
a. Optik LED warrants that under normal use in accordance with the applicable user manual the Products, (excluding any software that is not embedded in a Product by Optik LED) shall, at the time of delivery to Buyer and for a period of twelve (12) months from the date of delivery (or such other period as may be agreed upon in writing by the parties), be free from defects in material or workmanship and shall substantially conform to Optik LED’s specifications for such Product, or such other specifications as Optik LED has agreed to in writing, as applicable. Optik LED’s sole and exclusive obligation, and Buyer’s sole and exclusive right, with respect to claims under this warranty shall be limited, at Optik LED’s option, either to the replacement or repair of a defective or non-conforming Product or to an appropriate credit for the purchase price thereof. Optik LED will have a reasonable time to repair, replace or credit. The non-conforming or defective Products shall become Optik LED’s property as soon as they have been replaced or credited.
b. Optik LED reserves the right to choose all contractors and/or consultants in connection with validation and rectification of a product complaint. If it is subsequently determined that Optik LED or it products are not responsible for an alleged product failure, it is agreed the costs of such contractors and/or consultants and any rectification costs incurred will be repaid to Optik LED.
c. Buyer may ship Products returned under warranty to Optik LED’ designated facility only in conformance with Optik LED’ then-current return material authorization policy. Where a warranty claim is justified, Optik LED will pay for freight expenses. Buyer shall pay for returned Products that are not found to be defective or non- conforming together with the freight, testing and handling costs associated therewith.
d. Notwithstanding the foregoing, Optik LED shall have no obligations under warranty if the alleged defect or non-conformance is found to have occurred as a result of environmental or stress testing, misuse, use other than as set forth in the user manual, neglect, improper installation or accident, or as a result of improper repair, alteration, modification, storage, transportation or improper handling.
e. The express warranty granted above shall extend directly to Buyer and not to Buyer’s customers, agents or representatives and is in lieu of all other warranties, whether express or implied, including without limitation any implied warranties of fitness for a particular purpose, merchantability, or non-infringement of intellectual property rights. All other warranties are hereby specifically disclaimed by Optik LED. Nothing contained herein shall affect the rights of a customer of Buyer who is a consumer within the meaning of the Trade Practices Act.
f. Subject to the exclusions and limitations set forth in Section 9 of the Terms and Conditions, the foregoing states the entire liability of Optik LED in connection with defective or non-conforming Products supplied hereunder.
8. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
a. Optik LED, at its sole expense, shall: (i) defend any legal proceeding brought by a third party against Buyer to the extent that the proceeding includes a claim that any Product as furnished by Optik LED under an Agreement directly infringes the claimant’s patent, copyright, trademark, or trade secret; and (ii) hold Buyer harmless against damages and costs awarded by final judgment in such proceeding to the extent directly and solely attributable to such infringement.
b. Optik LED shall have no obligation or liability to Buyer under Section (a) (1) if Optik LED is not: (i) promptly notified in writing of any such claim; (ii) given the sole right to control and direct the investigation, preparation, defense and settlement of such claim, including the selection of counsel; and (iii) given full reasonable assistance and cooperation by Buyer in such investigation, preparation, settlement and defense; (2) if the claim is made after a period of three (3) years from the date of delivery of the Product.
c. If any Product is, or in Optik LED’s opinion is likely to become, the subject of a claim of infringement as referred to under Section 8 (a) above, Optik LED shall have the right, without obligation and at its sole option, to: (i) procure for Buyer the right to continue to use or sell the Product; (ii) provide replacement Product, or (iii) modify the Product in such a way as to make the modified Product non-infringing; or (iv) terminate any Agreement to the extent related to such Product.
d. Subject to the exclusions and limitations set forth in Section 9 of the Terms and Conditions, the foregoing states Optik LED’s entire liability and obligation to Buyer and Buyer’s sole remedy with respect to any actual or alleged infringement of any intellectual property rights or any other proprietary rights of any kind.
9. LIMITATION OF LIABILITY
a. OPTIK LED SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF REPUTATION, LOSS OF GOODWILL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SALE OF ANY PRODUCTS OR SERVICES BY Optik LED’s OR THE USE THEREOF WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY – EVEN IF OPTIK LED’s HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES.
b. OPTIK LED’s AGGREGATE AND CUMULATIVE LIABILITY TOWARDS BUYER UNDER ANY AGREEMENT SHALL NOT EXCEED AN AMOUNT OF ONE PERCENT (1%) OF THE RELATED AGREEMENT.
c. Any Buyer’s claim for damages must be brought by Buyer within Ten (10) days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim. Any claims that have been brought or filed not in accordance with the preceding sentence are null and void.
d. The limitations and exclusions set forth above in this Section 9 shall apply only to the extent permitted by applicable mandatory law.
Buyer acknowledges that all technical, commercial and financial data disclosed to Buyer by Optik LED and/or its affiliates is the confidential information of Optik LED and/or its affiliates. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein.
11. EXPORT/IMPORT CONTROLS
If the delivery of Products under the Agreement is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Optik LED may suspend its obligations and Buyer’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Optik LED may even terminate the Agreement, without incurring any liability towards Buyer.
Furthermore, if an end-user statement is required, Optik LED shall inform Buyer immediately thereof and Buyer shall provide Optik LED with such document upon Optik LED’s first written request; if an import license is required, Buyer shall inform Optik LED immediately thereof and Buyer shall provide Optik LED with such document as soon as it is available. By accepting Optik LED’s offer, entering into any Agreement and/or accepting any Products, Buyer agrees that it will not deal with the Products and/or documentation related thereto in violation of any applicable export or import control laws and regulations.
12. ASSIGNMENT AND SETOFF
Buyer shall not assign any rights or obligations under the Agreement without the prior written consent of Optik LED. Buyer shall have no right to withhold or reduce any payments or to offset existing and future claims against any payments due for Products sold under the Agreement or under any other agreement that Buyer may have with Optik LED or any of its affiliates may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf.
13. GOVERNING LAW AND FORUM
All offers, confirmations and Agreements are governed by and construed in accordance with the laws of the State of Texas. All disputes arising out of or in connection with any Agreement shall first be attempted by Buyer and Optik LED to be settled through consultation and negotiation in good faith in a spirit of mutual cooperation. All disputes which cannot be resolved amicably shall be submitted to the exclusive jurisdiction of the courts of Waco Texas, provided that Optik LED shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any offer, confirmation or Agreement. Nothing in this Section 13 shall be construed or interpreted as a limitation on either Optik LED’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
14. BREACH AND TERMINATION
Without prejudice to any rights or remedies Optik LED may have under the Agreement or at law, Optik LED may, by written notice to Buyer, terminate with immediate effect the Agreement or any part thereof without any liability whatsoever, if:
a. Buyer violates or breaches any of the provisions of the Agreement;
b. any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer.Upon occurrence of any of the events referred to above, all payments to be made by Buyer under the Agreement shall become immediately due and payable.In the event of cancellation, termination or expiration of an Agreement the terms and conditions destined to survive such cancellation, termination or expiration shall so survive.
a. In the event that any provision(s) of these Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof. In the event that any provision of these Terms and Conditions shall finally be determined to be unlawful or unenforceable, such provision shall be deemed severed from these Terms and Conditions, but every other provision shall remain in full force and effect, and in substitution for any such provision held unlawful or unenforceable, there shall be substituted a provision of similar import reflecting the original intent of the clause to the extent permissible under applicable law.
b. The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from the Agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising there from preclude any other or future exercise thereof or the exercise of any other right or remedy arising from the Agreement or from any related document or by law.