LIGHTSMYTH TERMS AND CONDITIONS FOR ON-LINE STORE
1. Title and Delivery. All Goods are sold CPT from the Seller’s factory (IncoTerms 2010). Risk of loss and damage thereto shall pass to Buyer upon Seller’s tender of delivery thereof to a carrier at such point, and any loss or damage thereafter shall not relieve Buyer from any payment obligation. Buyer shall be responsible for filing any claims with a carrier Seller reserves the right to make deliveries in installments. Buyer shall be responsible for all export licenses, import duties, taxes, and any other expenses incurred or licenses or clearances required at port authority of shipment and destination. Shipping dates are approximate only and Seller shall not be liable for any damage, loss or expense incurred by Buyer if Seller fails to meet the specified shipping dates. Unless otherwise specified, Goods shall be shipped in Seller’s standard packaging. Proof of delivery shall be obtained by Seller from Buyer’s designated carriers. No order by Buyer, regardless of whether a payment has been received, shall be binding upon Seller until the order has been accepted by Seller. The Seller Order Acknowledgement shall be deemed acceptance of the order.
2. Prices. The prices listed on Seller’s on-line store (the “Prices”) are firm only for orders placed on-line. Seller reserves the right to change these prices at any time at its sole discretion.
3. Taxes/ Shipping. Prices do not include any taxes, duties or levies (including, but not limited to, export, sales, use, excise, or value-added taxes) that may be applicable to the Goods. The total price includes shipping or freight costs, which costs shall be paid for by Buyer. Any sales, use or manufacturer’s tax which may be imposed upon the sale or use of Goods, or any property tax levied after readiness to ship, or any excise tax, license or similar fee required under this transaction, shall be in addition to the quoted prices and paid by Buyer.
4. Terms and Method of Payment. Payment in full for the Goods is required prior to shipment. Payment processing is provided by Paypal Inc. The terms and conditions of their services can be found at www.paypal.com/au/webapps/mpp/ua/legalhub-full.
5. Contingencies. Seller is not liable, either wholly or in part, for nonperformance or a delay in performance due to force majeure events or contingencies or causes beyond the reasonable control of Seller, including, but not limited to, strikes, natural disasters, war, civil unrest, terrorist acts, pestilence, shortage of labor, fuel, raw material or machinery or technical or yield failure. Production and deliveries may be allocated by Seller in its sole and reasonable discretion in the event of a shortage of Goods.
6. Warranties. Except as otherwise provided in these terms, Seller warrants to Buyer only (and not to any entity who takes possession of the Goods from Buyer) that, for a period of twelve (12) months from date of shipment, the Goods will be free from material defects in workmanship and materials and will substantially conform to Seller’s published functional specifications for the Goods effective at the time of the sale. Any returns related to surface quality (scratches, digs, dirt, etc), which can deteriorate with Buyer’s use, will only be considered within the first 30 days after the date of shipment. Notwithstanding the foregoing, Seller makes NO WARRANTY as to Goods to the extent they consist or contain experimental or development Goods, all of which are supplied “AS IS”. THE WARRANTIES SET FORTH HEREIN SHALL NOT BE ENLARGED OR OTHERWISE AFFECTED BY, AND NO OBLIGATION OR LIABILITY OF SELLER SHALL ARISE OR GROW OUT OF, SELLER’S RENDERING OF TECHNICAL ADVICE OR SERVICE TO BUYER, EXCEPT AS SET FORTH IN THIS SECTION, SELLER MAKES NO OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR PLACE LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
7. Remedies. Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy, for any breach of the warranties set forth in the previous section shall be (at Seller’s option) to replace the Goods causing such breach, provided that (i) Buyer promptly notifies Seller in writing upon discovery that such Goods failed to conform to such warranties, and provides a detailed explanation and documentation of any alleged deficiencies, (ii) Buyer obtains a return merchandise authorization (RMA) from Seller, (iii) Buyer at its cost returns such Goods during the applicable warranty period to Seller’s plant from which Goods were shipped, and (iv) Seller’s examination of such Goods discloses that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration or improper installation. Seller may, at its sole discretion, replace the reported faulty products, as specified by Seller. If the replacement products fail within the warranty period, Buyer is entitled to get a working replacement. Buyer will supply all identifying shipping documents and use for return shipment Seller’s original packaging in order to avoid any deterioration of the Goods. In addition, Buyer will enclose supporting data detailing the nature of the defect. If Seller elects to replace such Goods, Seller shall have a reasonable time to make such replacement and such replaced Goods shall be warranted for the remainder of the original warranty period. Such replacement shall constitute fulfillment of all liability of Seller to Buyer whether based in contract, tort (including negligence), indemnity, statutory provision or otherwise. If Seller’s examination of such Goods does not find that the alleged deficiencies actually exist or if the alleged deficiencies were caused by accident, misuse, neglect alteration or improper installation, then, at Seller’s discretion, Seller may ship such Goods back to Buyer at Buyer’s expense.
8. Consequential Damage. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SELLER WILL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTIONS OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER’S AGGREGATE LIABILITY IN CONNECTION WITH THE GOODS AND THESE TERMS OR WITH RESPECT TO ANY PERIOD BEYOND. THE WARRANTY PERIOD SET FORTH IN SECTION 6 SHALL NOT IN ANY EVENT EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER HEREUNDER FOR THE AFFECTED GOODS IN SUCH PURCHASE ORDER GIVING RISE TO SUCH LIABILITY.
9. Limitations. Neither the acceptance of any order, nor sale of components, Goods or any parts thereof hereunder confers on the Buyer a license under any patent rights or proprietary information or any other entity covering or relating to (i) the Goods, or (ii) the structure of any device to which the components or parts may be applied, or (iii) a process or machine in connection with which they may be used. Except as expressly set forth in these terms, Seller does not grant to Buyer any license under Seller’s, Finisar Corporation's, or any of their affiliates’ intellectual property rights, including without limitation any license to incorporate Goods into any product, including wavelength selective switch products with liquid crystal on silicon (LCOS) technology, that practices any of Seller’s, Finisar Corporation's, or any of their affiliates’ patents.
10. Compliance With Laws and Export Restrictions. These commodities or technology were exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Buyer shall comply with all laws, rules, regulations, governmental requirements and industry standards applicable to the purchase, sale, leasing, licensing, marketing, demonstration, installation, servicing, repair or use of the Goods provided by Seller. Buyer shall not export any Goods to any jurisdiction without first obtaining all necessary export and import permits and clearances and in no event shall Buyer export any Goods or technical data in violation of any applicable law or regulation, whether foreign or domestic. Buyer agrees not to distribute the Goods, Seller technical data or any part thereof to any person if Buyer has reason to believe that such person intends to export, reexport or otherwise take the same to, or to use the same in, any of the prohibited destinations of any applicable laws of the United States
11. Compliance with Anti-Bribery Laws. Buyer agrees to fully comply with the U.S. Foreign Corrupt Practices Act (“FCPA”), 15 U.S.C. §§ 78dd1, et. seq. and all other anti-bribery laws including, but not limited to, the U.K. Bribery Act (2010), PRC Anti-Unfair Competition Law, and PRC Criminal Law, Article 164. Buyer agrees that it shall not give, pay, or offer to give or pay, money or anything of value, directly or indirectly, to any private or governmental official, political party or party official, or any candidate for political office for the purpose of obtaining or retaining business, directing business to any person or entity, securing any illegitimate business benefit, or securing any improper or illegal advantage on behalf of itself, Seller, or any third party. Buyer agrees to immediately inform Seller of any violations or suspected violations of any anti-bribery law, including the FCPA, Bribery Act, AntiUnfair Competition Law, or Article 164, Criminal Law. Buyer agrees to defend, indemnify and hold Seller harmless from and against any and all liability including, without limitation, all costs, expenses, claims, damages, fines, and penalties, and any and all other amounts owed to any party, including governmental entities, based on any finding by any governmental authority or acknowledgement by Buyer that Buyer, or any party affiliated with or controlled by Buyer, violated, intentionally or otherwise, the anti-bribery laws of any jurisdiction.
12. Cancellation. Buyer may not cancel its order for goods purchased on Seller’s on-line store after Seller’s acceptance of the Buyer’s order.
13. No Commercial Replication. Unless agreed otherwise in writing, Buyer agrees not to replicate Seller’s Goods or products for commercial use or sale.
14. No Reverse Engineering. Buyer agrees not to reverse engineer, attempt to derive the composition or underlying information, structure or idea of any Seller Goods or products.
15. Non-Waiver of Default. In the event of any default by Buyer, Seller may decline to make further shipments. If Seller elects to continue to make shipments, Seller’s action shall not constitute a waiver of any such default by Buyer and shall not in any way affect Seller’s legal remedies for any such default.
16. Applicable Law. The validity, performance and construction of these Terms shall be governed by the laws of the State of California without regard to its conflicts of law provisions. With the exception of Seller’s rights to obtain injunctive relief from any court of competent jurisdiction, all actions and proceedings relating to or arising out of these Terms shall be brought only in the U.S. District Court for the Northern District of California or the Superior Court of California for the County of Santa Clara, and the parties hereby acknowledge and submit to exclusive jurisdiction of and venue in such courts. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to the Goods or these Terms.
17. Assignment. Buyer may not assign (voluntarily, by operation of law or otherwise) these Terms, or any of its rights or obligations there under, without the prior written approval of Seller.
18. Confidentiality. Any drawings, data, designs, software programs or other technical information supplied by Seller to Buyer in connection with the sale of the Goods shall remain Seller property and be held in confidence by Buyer. Such information shall not be reproduced or disclosed to others without Seller’s prior written consent.
19. Entire Agreement; Modification. These Terms constitute the entire agreement between the parties relating to the sale of the Goods and supersedes all prior or contemporaneous communications, representations or agreements either oral or written, with respect to the subject matter hereof. Any representations or statements of any kind made by any representative of Seller that are not stated herein shall not be binding upon Seller. No addition to or modification of any provisions upon the face or reverse hereof shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in these Terms.
20. Severability. If any provision of these Terms shall be determined to be illegal or unenforceable, all other provisions shall remain in full force and effect.
21. Notice. All notices provided by Buyer pursuant to these Terms shall be in writing and shall be deemed delivered on the date of personal delivery if addressed to the recipient at the address set forth in any order or agreement in which these terms are invoked.
22. Hazardous Applications. Seller’s general policy does not recommend the use of its products in life support, medical, automotive, transportation or industrial applications wherein a failure or malfunction of the product may directly threaten life, injury, loss of significant amounts of property or result in catastrophic failure. Accordingly, in any use of the Goods in life support systems or other applications where failure could threaten life, injury or catastrophic losses, the Goods should only be incorporated in systems designed with appropriate redundancy, fault tolerant or backup features. Regardless, per these Terms, for all use of the Goods in life support, medical, automotive or industrial applications Buyer assumes all risk of such use and indemnifies Seller against all damages.