Terms & Conditions

1. General; Entire Agreement.
The sale of product(s) described in the accompanying quotation (the “Products”) by Permlight Products, Inc. (“Seller”) to the party receiving the quotation (“Buyer”) shall be governed by these terms and conditions (the “Terms”). Seller’s offer to sell the Products to Buyer is expressly limited to Buyer’s acceptance of the Terms. Any of the following constitutes Buyer’s unqualified acceptance of the Terms: (i) issuance of a purchase order for the Products; (ii) acceptance of any Products; or (iii) payment for any Products. Additional or different terms or conditions proposed by Buyer (whether provided in a purchase order or elsewhere) shall be void and of no effect unless specifically accepted in writing by Seller. The accompanying quotation and any resulting purchase order shall be the exclusive agreement between the parties with regard to the Products, subject to the Terms. Any prior or contemporaneous understandings, agreements, and representations, oral or written, are superseded by the Terms. No modification to the Terms shall be valid unless in writing and signed by Seller.

2. Price; Payment Terms; Security Interest.
The Products shall be sold at the prices listed in the quotation, provided that Buyer has issued a purchase order prior to the expiration date of the quotation. Prices do not include sales, excise, use or other taxes levied by reason of this transaction. Buyer will pay and indemnify and hold Seller harmless from all such taxes. Payment terms are net thirty (30) days from date of invoice. If payment is not received by the due date, a late charge will be added at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date thereof. If Buyer is delinquent in paying any amount owed to Seller by more than ten (10) days, without limiting any other rights and remedies available to Seller under the law, in equity, or under the Terms, Seller may (i) suspend production, shipment and/or deliveries of any or all Products purchased by Buyer, or (ii) by notice to Buyer, treat such delinquency as a repudiation by Buyer of the portion of the Terms not then fully performed, whereupon Seller may cancel all further deliveries and any amounts unpaid hereunder shall immediately become due and payable. If Seller retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including attorney’s fees, shall be payable by Buyer. Seller reserves a purchase money security interest in the Products in the amount of the purchase price of such Products to secure Buyer’s obligations hereunder. Buyer appoints Seller as its agent and attorney-in-fact to execute any financing statements under the Uniform Commercial Code and any appropriate amendments thereto on Buyer’s behalf which Seller deems necessary to protect Seller’s interest in the Products.

3. Shipment; Delivery; Acceptance.
Seller will use commercially reasonable efforts to comply with shipping instructions provided by Buyer. In the absence of any such instructions, Seller will ship by the method it deems most advantageous. Transportation charges will be prepaid by Buyer or subsequently invoiced to Buyer. When special or export packaging is required, the cost of the same, if not set forth on the invoice, will be separately invoiced. Seller may make delivery in installments and may render a separate invoice for each installment. Each installment shall be deemed a separate sale. Any delivery not in dispute shall be paid for on the due date as provided in the Terms without any offset, regardless of controversies relating to other delivery or undelivered products. Unless stated otherwise by Seller, all shipment will be EXW (Ex Works) (as defined in Incoterms 2000) Seller’s manufacturing facility, if destination of delivery is outside the United States and F.O.B. (Free on Board) (as defined in U.C.C. Section 2-319) Seller’s manufacturing facility, if destination of delivery is within the United States. Title to each shipment of the Products sold hereunder and risk of loss thereon shall pass to Buyer when Seller or its agent tenders such shipment to the carrier, but such shipment shall remain subject to Seller’s rights of stoppage in transit and of reclamation. Buyer or Buyer’s agent may inspect the Products at Seller’s place of manufacture. Buyer shall accept any tender of the Products by Seller which substantially conforms to the description of the Products set forth herein. Buyer shall be deemed to have irrevocably accepted any Product and, subject to Section 5, Buyer’s right to reject such Product shall cease, unless Buyer gives to Seller notice of rejection in writing: (a) in the case of defects discoverable through inspection, within ten (10) days after delivery to the destination specified in Buyer’s purchase order, or (b) in the case of defects not discoverable through inspection, within twenty (20) days after delivery to the destination specified in Buyer’s purchase order. Buyer’s notice must specify the nature and grounds of the rejection in reasonable detail. Buyer’s right to inspect and reject any defective product as described in this Section 3 does not apply to any service parts.

4. Force Majeure.
Seller shall not be liable for any delay or failure in performance of any obligation under the Terms, including any delivery obligation, where such delay or failure arises or results from a cause beyond Seller’s reasonable control, including, but not limited to strike, boycott or other labor disputes, embargo, governmental regulation, inability or delay in obtaining materials, acts of God, war, earthquake, fire, or flood.

5. Warranty.
The warranties for the Products are as provided in Seller’s Warranty Policy, available at http://www.permlight.com/techdata/warranty.asp and incorporated herein by reference.

6. Limitation of Liability.
IN NO EVENT WILL SELLER BE RESPONSIBLE OR LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR CONTINGENT DAMAGES ARISING FROM OR RELATING TO THE TERMS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE TERMS, INCLUDING ANY LIABILITY RELATED TO A CLAIMED DEFECT IN ANY PRODUCT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT PAID BY BUYER ON WHICH THE CLAIM IS BASED.

7. Assignment.
The Terms and Buyer’s rights hereunder may not be assigned to any third party by Buyer, except with the prior written approval of Seller. Any assignment of the Terms or any rights hereunder in violation of this Section 7 will be null and void.

8. Miscellaneous.
The Terms shall be governed by and construed in accordance with the laws of the State of California, without regard to any conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms. Any legal action or other legal proceeding relating to the Terms must be brought in any state or federal court located in Orange County, California. Buyer and Seller expressly and irrevocably consent and submit to the jurisdiction of such courts. The prevailing party in any legal action brought by one party against the other shall be entitled, in addition to any rights and remedies it may have, to reimbursement for its expenses incurred thereby, including court costs and reasonable attorney’s fees. Buyer agrees to comply with all applicable foreign, U.S., state, and local laws, rules, and regulations relating to the Terms and the Products including the laws, rules, and regulations of the United States which restrict the export and re-export of commodities and technical data of United States origin, including the Products. Waiver by Seller of any provision of the Terms or breach by Buyer on any provision herein shall not be deemed a waiver of future compliance with the Terms, and such provision, as well as all other provisions herein, shall remain in full force and effect. If any provision of the Terms is declared by a court of competent jurisdiction to be invalid, void or unenforceable, then such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.