FILMETRICS, INC. TERMS OF SALE(Rev. 2015Oct1)
THESE TERMS APPLY TO ALL GOODS AND SERVICES (THE “GOODS”) ORDERED BY THE PURCHASER (“BUYER”) (WHETHER DIRECTLY OR THROUGH A PURCHASING AGENT) FROM FILMETRICS, INC. (“SELLER”). THESE TERMS MAY NOT BE MODIFIED WITHOUT THE EXPRESS WRITTEN APPROVAL OF SELLER. IF BUYER DOES NOT AGREE WITH THESE TERMS OF SALE, DO NOT RETURN THE ORDER ACKNOWLEDGEMENT. BY RETURNING THE ORDER ACKNOWLEDGEMENT YOU CONFIRM THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THESE TERMS ON BEHALF OF BUYER.
No order shall be binding on Seller unless approved by Seller at its headquarters located at 10655 Roselle St. Ste. 200, San Diego, CA 92121 USA.
DELIVERY AND PAYMENT TERMS
Each shipment shall be a separate transaction. In the event of Buyer’s late payment, other breach, insolvency, or (in Seller’s opinion) credit impairment, Seller may withhold or recall further shipments. Seller will make reasonable efforts to deliver on time, but shall not be liable for late shipments. Buyer shall be responsible for all reasonable costs (including but not limited to attorney’s fees) and expenses incurred by Seller in the collection of any sums owed by Buyer.
Buyer must inform Seller of any non-conforming Goods via written notice within 15 days of receipt of the Goods, otherwise such Goods shall be deemed accepted by Buyer. Any return for non-conformance must follow the process set forth under “Returns” below.
No return of Goods will be accepted by Seller without an RMA #, which will be issued at Seller’s sole discretion, and which must be referred to in the documents accompanying any returned Goods. Returned Goods must be shipped in packaging and shipping cartons “original or like” those used on delivery of the Goods by Seller to Buyer.
Buyer may return any Goods, except computers, custom components, and products ordered pursuant to Seller Rent-To-Own Purchase Option terms, within thirty (30) days of Seller’s ship date, DDP Filmetrics – San Diego, subject to a restocking charge of 15% of the purchase price. Custom components and computers may not be returned for a refund unless expressly authorized in writing by Seller.
With respect to Goods manufactured or assembled by Seller (excluding light bulbs, optical fiber cables and reference/test wafers), Seller warrants to Buyer, and to no others, that such Goods shall be free from defects in materials or workmanship for a period of one year after the original ship date to Buyer under proper and normal use as deemed by Seller. Said warranty is the sole and exclusive warranty given by Seller with respect to such Goods. This warranty does not apply if: (a) the Goods are damaged by accident, improper installation, electrical surges, or acts of nature, (b) the Goods are altered or repaired by anyone other than Seller, or (c) any serial number on the Goods is removed or tampered with.
With respect to Goods not manufactured or assembled by Seller, Seller makes no express warranties whatsoever. Seller will, however, transfer to the Buyer, any transferable warranties on such Goods as may be issued by the respective manufacturers thereof, provided that Seller assumes no liability by reason of any such transfer, and that any such transfer is without recourse to Seller.DISCLAIMER OF WARRANTY. THE WARRANTIES SET FORTH ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, THAT ARE MADE BY FILMETRICS INC. IN CONNECTION WITH THE GOODS OR OTHERWISE UNDER THIS AGREEMENT, AND FILMETRICS INC. SPECIFICALLY DISCLAIMS, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, ALL STATUTORY OR OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT, MERCHANTABILITY OR ANY IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
Filmetrics products, software or technical information (collectively "Filmetrics Technology") are subject to the U.S. Export Administration Regulations and U.S. Department of Treasury, Office of Foreign Assets Control ("OFAC") sanctions regulations. Filmetrics Technology is classified under EAR99 or Export Control Classification Number (ECCN) 3A999.f. Authorization for export may be required from the U.S. Department of Commerce. Buyer agrees that it will not export, re-export or transfer any Filmetrics Technology in violation of the EAR or OFAC sanctions regulations, or any other applicable export control laws or regulations.
Neither Buyer nor Seller shall have any liability for any incidental, consequential, indirect, liquidated, punitive, or special damages of any kind or nature whatsoever, arising from or related to the sale, use, or operation of the Goods, including but not limited to damages arising from or related to loss of business, loss of profit, loss of goodwill, injury to reputation, downtime, or costs of any customer of Buyer, whether in an action in contract or tort or based on warranty, even if the party has been advised of the possibility of such damages. Excluding claims by Seller under “Delivery and Payment Terms above, each of Buyer’s and Seller’s total respective aggregate liability, shall not exceed the purchase price of the Goods furnished under the order to which the claim(s) relate, irrespective of the nature of the claims whether in contract, tort, warranty, or otherwise. The limitations set forth herein shall apply to the maximum extent allowed by applicable law, notwithstanding any failure of essential purpose of any limited remedy.
The validity, construction and interpretation of this contract of sale shall be governed by laws of the state of California, USA, without regard to its conflicts principles. In the event Seller and Buyer have entered into an express written agreement duly executed by both parties with reference to the Goods furnished pursuant to these terms of sale, the terms and provisions of such express written agreement shall take precedence over any contradictory or inconsistent terms contained herein. Except as to the foregoing, these terms shall apply to all orders and Seller specifically rejects any conflicting terms, including if set forth in Buyer’s Purchase Order or other documents. These terms constitute the entire agreement between the parties and supersede all prior agreements, promises, proposals, representations, understandings, and negotiations, whether written or oral, between the parties with respect to the subject matter hereof. No modification, amendment, supplement to, or waiver of these terms shall be binding unless made in writing and executed by both parties.