AGREEMENT AND LIMITATIONS. The agreement between LUXAE SL (hereinafter “LUXAE”) and COSTUMER (the “sales contract”) with respect to the sale of goods (the “goods”) described on the other side hereof shall consist of the terms appearing hereon and on the other side hereof together with any additions or revisions of such terms mutually agreed to in writing by LUXAE and COSTUMER. LUXAE objects to and shall not be bound by any additional or different terms, whether printed or otherwise, in COSTUMER’s purchase order or in any other communication from COSTUMER to LUXAE unless specifically agreed to by LUXAE in writing. Except as expressly stated in the sales contract, no reference to COSTUMER’s purchase order or other communication from COSTUMER shall be deemed to incorporate by reference any terms appearing therein. The sales contract shall be for the benefit of LUXAE and COSTUMER and not for the benefit of any other person. Prior courses of dealing, trade usage and verbal agreements not reduced to a writing signed by LUXAE, to the extent they modify, add to, detract from, supplant or explain the sales contract, shall not be binding on LUXAE.
TERMINATION OR MODIFICATION. The sales contract may be modified or terminated only upon LUXAE’s written consent except that stenographic and clerical errors are subject to correction by LUXAE or upon LUXAE’s written consent. If LUXAE shall declare or consent to a termination of the sales contract, in whole or in part, COSTUMER, in the absence of contrary written agreement signed by LUXAE, shall pay termination charges based upon expenses and costs incurred in the production of the goods or in the performance of the services to the date such termination is accepted by LUXAE including, but not limited to, expenses of disposing of materials on hand or on order from suppliers and the losses resulting from such disposition, plus a reasonable profit. Not withstanding the foregoing any goods substantially completed or services performed on or prior to such termination shall be accepted and paid for in full by COSTUMER.
PRICE AND PAYMENT. Prices are subject to increase by LUXAE based on LUXAE’s prices in effect at the time of shipment in all instances where specified shipment date is later than 30 days from date of order. Unless otherwise specified in the sales contract or LUXAE’s applicable price list, prices are EXW. LUXAE’s point of shipment, and the terms of payment are NET from the date of invoice. If the sales contract is for more than one unit of goods, the goods may be shipped in a single lot or in several lots at the discretion of LUXAE. In such event each such shipment shall be paid separately and COSTUMER shall be responsible for all transportation charges. LUXAE may require full or partial payment guarantee in advance of shipment whenever, in its opinion, the financial condition of COSTUMER so warrants. Payment by credit card may be subject to a service charge.
PAST DUE INTEREST. Amounts not paid when due shall be subject to past due interest at the rate of 18% per year or the highest rate permitted by law, whichever is less.
RISK OF LOSS. The risk of loss of the goods or any part thereof shall pass to the COSTUMER upon delivery thereof by LUXAE to the carrier. COSTUMER shall have sole responsibility for processing and collection of any claim of loss against the carrier, even if LUXAE has organised the transport service.
TAXES. Prices do not include taxes. COSTUMER shall pay LUXAE, in addition to the price of the goods, any applicable excise, sales, use or other tax (however designated) imposed upon the sale, production, delivery or use of the goods ordered to the extent required or not forbidden by law to be collected by LUXAE from COSTUMER, whether or not so collected at the time of the sale, unless valid exemption certificates acceptable to the taxing authorities are furnished to LUXAE before the date of invoice.
DELIVERY. Promises of delivery from stock are subject to prior sale. Delivery dates are not guaranteed but are estimated on the basis of immediate receipt by LUXAE of all information to be furnished by COSTUMER and the absence of delays, direct or indirect, resulting from contributed to by circumstances beyond LUXAE’s reasonable control. LUXAE shall in good faith endeavor to meet estimated delivery dates but shall not be liable to COSTUMER for any damages as a result of any delay caused or contributed to by circumstances beyond LUXAE’s reasonable control.
DEDUCTIONS AND RETURNS. A Return Material Authorization (RMA) must be obtained before returning merchandise for credit. Returns are subject to 20% or more restocking charges unless otherwise agreed upon at the time RMA as issued. All returns are subject to inspection of merchandise and any defects in units will be charged back to the COSTUMER at the cost of past and labor. Credit deductions will not be honored unless covered by a credit memorandum. Goods shipped to the COSTUMER may be returned to LUXAE for credit only upon the LUXAE’s prior written consent (such consent to be in the sole discretion of LUXAE) and upon terms specified by LUXAE, including prevailing restocking, freight, and handling charges. COSTUMER assumes all risk of loss for such returned goods until actual receipt thereof by LUXAE. Agents of LUXAE are not authorized to accept, returned goods or to grant allowances or adjustments with respect to COSTUMER’s account.
INSPECTION. COSTUMER shall inspect the goods immediately upon the receipt thereof. All claims for any alleged defect in LUXAE’s performance under this sales contract, capable of discovery upon reasonable inspection, must be fully set forth in writing and received by LUXAE with thirty days of COSTUMER’s receipt of the goods. Failure to make any such claim within said thirty-day period shall constitute a waiver of such claim and an irrevocable acceptance of the goods by COSTUMER.
LIMITED WARRANTY. LUXAE S.L. warrants each new product to be free from defects in material and workmanship, under normal use and service, for a period of one year on parts replacement and one year on labor from the date of delivery to the first user-purchaser, except for noted products. During this warranty period, the obligation of LUXAE is limited to repairing or replacing, as LUXAE may elect, any part or parts of such product which after examination by LUXAE discloses to be defective in material and/or workmanship. LUXAE will provide warranty for any unit which is delivered, transported prepaid, the LUXAE factory or designated authorized warranty service center for examination and such examination reveals a defect in material and/or workmanship. This warranty does not cover travel expenses, the cost of specialized re-installation of the product. Lamps, flash tubes, or batteries are not covered under warranty. This warranty does not extend to any unit which has been subjected to abuse, misuse, improper installation or which has been inadequately maintained, not to units which have problems relating to service or modification at any facility other than the LUXAE factory or authorized warranty service centers.
THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL LUXAE BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY SUCH DEFECT IN MATERIAL OR WORKMANSHIP.
REMEDIES AND LIMITATIONS OF LIABILITY. In the event LUXAE is claimed to have breached any of its obligations under the sales contract, whether of warranty or otherwise, LUXAE may repair any defective goods, request the return of the goods and tender, at LUXAE’s options, a replacement shipment of goods or the purchase prices theretofore paid to LUXAE. LUXAE shall tender a refund of the purchase price at its option upon actual receipt of the goods by LUXAE. If LUXAE so request the return of the goods, the goods will be redelivered to LUXAE, transportation prepaid, in accordance with LUXAE’s instructions. The remedies contained in this and the preceding paragraph constitute the sole recourse against LUXAE for breach of any of LUXAE’s obligations under the sales contract whether of warranty or otherwise. In no event shall LUXAE be liable for consequential damages nor shall LUXAE’s liability on any claim for any direct, incidental, consequential or special damages arising out of or connected with the sales contract or the manufacture, sale, delivery or use of the goods exceed the purchase price of the goods. LUXAE shall not be liable for failure to perform its obligations under the sales contract, resulting directly or indirectly from or contributed to by acts of God; acts of COSTUMER; civil or military authority; priorities; fires; war; riot; delays in transportation; lack or inability to obtain raw materials, components, labor, fuel or supplies; or other circumstances beyond LUXAE’s reasonable control, whether similar or dissimilar to be foregoing.
PATENTS. LUXAE shall hold COSTUMER harmless, to the extent herein provided, against any rightful claim of any third person by way of infringement of any patent by such goods as are of LUXAE’s own manufacture, but if COSTUMER furnished specifications to LUXAE, COSTUMER shall hold LUXAE harmless against any such infringement claims which arise out of compliance with such specifications. LUXAE’s agreement in this paragraph to hold COSTUMER harmless shall not apply to any infringement consisting of the use of goods manufactured by LUXAE as a part of any combination with goods manufactured by COSTUMER or others. In the event that any goods manufactured by LUXAE are in any suit held to constitute infringement and their use is enjoined, LUXAE, if unable within a reasonable time to secure for COSTUMER the right to continue using such goods, either by suspension of the junction, by securing for COSTUMER a license, or otherwise, shall at its own expense, either replace such goods with non-infringing goods or modify such goods so that they become non-infringing goods or modify such goods so that they become non-infringing, or accept the return of the enjoined goods and refund the purchase price therefore paid by COSTUMER less allowance for any period of actual use thereof. Except as in this paragraph provided, LUXAE makes no warranty that the goods and refund the purchase price therefore paid by COSTUMER less allowance for any period of actual use thereof.
Except as in this paragraph provided, LUXAE makes no warranty that the goods will be delivered free of the rightful claim of any third person by way of infringement or the like and COSTUMER’s remedies will be limited to those provided in this paragraph.
The intellectual and industrial property of any product or design provided by LUXAE shall remain the property of LUXAE. The acquisition of any product provided by LUXAE only provides the ownership of that product unit for the use for which it has been manufactured, and in no case grants any right over the intellectual or industrial property contained therein. Similarly, the acquisition of a service provided by LUXAE only provides the right to enjoy that service, and in no case grants any right over the intellectual or industrial property generated by LUXAE during the use of such service, unless explicit and individual agreement for each intellectual or industrial property generated by LUXAE.
ASSIGNMENT AND DELEGATION. No right or interest in this sales contract shall be assigned by COSTUMER without LUXAE’s prior written consent, and no delegation of any obligation owed, or of the performance of any obligation, by COSTUMER shall be made without LUXAE’s prior written consent. Any attempted assignment or delegation shall be void and totally ineffective for all purposes unless made in conformity with this paragraph 9, 10 and 11 hereof, and if effective shall be subject to all limitations of this sales contract.
SEVERABILITY. If any term, clause or provision contained in the sales contract is declared or held invalid by a court of competent jurisdiction, such declaration or holding shall not affect the validity of any other term, clause or provision herein contained.
INSTALLATION. Installation shall be COSTUMER unless otherwise specifically stated on the sales contract.
COVERING LAW AND LIMITATIONS. The formation and performance of the sales contract shall be governed by Spanish laws. The parties agree to resolve amicably any differences that may arise on this contract. If not possible an amicable solution and result from litigation, both parties agree, expressly waiving any other jurisdiction that may apply, subject to the jurisdiction of the courts of the city of Barcelona. Any action for breach of the sales contract or any covenant or warranty contained herein must be commenced within one year after the cause of action accrued.
