The terms and conditions of sale contained herein will apply to all quotations and offers made and purchase orders accepted by Illumitex, Inc. (“Illumitex”). These terms and conditions will become a binding contract when accepted by commencement or performance (“Contract”). This Contract can only be accepted on the terms set forth and no alterations or additions will be incorporated without the express written consent of Illumitex. Illumitex’s failure to object to provisions contained in any communication from the customer (“Customer”) will not constitute acceptance of those provisions. All orders must be accepted by Illumitex.
a. All prices and discounts, now in effect, or hereafter issued are subject to changewithout notice.
b. All prices are exclusive of sales, use, excise, withholding or any other taxes applicable to the sale, use or delivery of the products set forth on the Illumitex order form (“Products”) sold pursuant to this Contract, or any charges for shipping, insurance or fees or commissions.
c. Any third party products provided by Illumitex are subject to and provided only pursuant to such third party terms, conditions and warranties.
d. All prices are in United States dollars.
All quotations and sales are EX WORKS Illumitex factory. Unless otherwise agreed in writing, transportation, insurance, express charges, special packaging, freight, dues, customs, duties and any other charges are not included in quotations or the Product prices. Unless otherwise agreed in writing, quotations are valid for 30 days from the date of quotation.
4. TERMS OF PAYMENT
Unless otherwise stated in the accepted order, all amounts due to Illumitex must be paid within 30 days pending credit approval after the date of Illumitex’s invoice and all payments are to be in United States dollars. Pro-rata payment will be due as deliveries are made. If Illumitex is required to bring legal action to collect delinquent accounts, then Customer will pay reasonable attorneys’ fees and costs of suit. Illumitex may charge the lesser of 1.5% per month or the maximum lawful rate on overdue amounts.
5. TITLE AND DELIVERY
Customer assumes title and the risk of loss or damages upon delivery EX WORKS Illumitex factory. Customer will take the steps necessary to maintain the Products in proper condition and will insure its interest in the Products, with Illumitex as a loss payee, for as long as any amounts remain owing to Illumitex for the Products. The time for delivery will be established by the parties after the date of acceptance of the order. Partial deliveries will be permitted. Illumitex will use commercially reasonable efforts to ship by the method specified and the time requested by Customer. Additional charges may apply to comply with Customer’s delivery method. Illumitex will not be liable for any delay in delivery of the Products. Customer may not delay or cancel a Product order or delivery.
Unless set forth in an order confirmation signed by Illumitex, no acceptance terms will apply.
7. LIMITED WARRANTY; DISCLAIMER
a. Illumitex warrants to Customer that for five years from the date of shipment to Customer of the Product, the Product will be free from defects in material and workmanship under normal use and will substantially conform to its specifications.
b. If, under normal and proper use, a defect or non‑conformity appears in a warranted Product during the applicable warranty period and Customer promptly notifies Illumitex in writing of such defect or non‑conformance and follows Illumitex’s instructions regarding return of such Product, then, at no charge to Customer, Illumitex will, at its option, either (i) repair, replace or correct the same in accordance with Illumitex’ support services policies, or (ii) provide a refund of the purchase price against return of the Product. Any repaired or replaced Product is warranted for the longer of 90 days from the date of shipment of the repaired or replaced Product or the remaining Product warranty period. This subsection sets forth Customer’s sole remedies and Illumitex’s entire liability for breach of warranties stated in this Section.
c. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, PRODUCTS ARE PROVIDED “AS IS” AND ILLUMITEX MAKES NO WARRANTY OR REPRESENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
d. Customer assumes all responsibility and liability for its use of the Products and will indemnify and hold harmless Illumitex from damages, liabilities, settlements, costs and legal fees incurred by Illumitex arising out of Customer’s use of the Products.
e. No written or oral statement made about any Product by an employee or agent of Illumitex will be effective to extend a warranty for the Products.
f. Customer may purchase support for the Products pursuant to mutually agreed upon statement of work, with additional agreed upon price.
8. LIMITATION OF LIABILITY
NEITHER ILLUMITEX NOR ITS SUPPLIERS WILL BE LIABLE TO CUSTOMER WITH RESPECT TO ANY SUBJECT MATTER OF THIS CONTRACT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT ILLUMITEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, (A) FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST DATA, OR (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (C) FOR LOSS OR CORRUPTION OF DATA OR INTERRUPTION OF USE, OR (D) FOR ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID TO ILLUMITEX FOR THIS ORDER.
9. PROPRIETARY RIGHTS
a. Illumitex and its licensors retain the intellectual property rights in and to all Products and related information and materials. Products and parts thereof, drawings, sketches, information, designs and manuals (“Materials”) furnished to Customer will be and remain Illumitex’s property and may not be copied or duplicated in any manner or submitted to any third party, for examination or otherwise, without Illumitex’s prior written consent.
b. For a period of five years following initial disclosure of any Illumitex confidential information (“Information”), Customer will (i) hold Information in confidence, (ii) not disclose Information to third parties, and (iii) not use any Information for any purpose except as authorized hereunder. Customer will treat all Information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but with no less than a reasonable degree of care under the circumstances. Because damages alone may not be adequate compensation for loss of Information, Illumitex, in addition to any other legal and equitable rights it may have, will be entitled to an injunction against the breach or threatened breach of this Section by Customer.
a. Customer is responsible for timely obtaining all necessary governmental permits, licenses, approvals and consents in connection with the import and use of the Products in Customer’s country or the country to which the Products are shipped.
b. This Contract is governed by the laws of the State of Texas, and the United States, without reference to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Contract. The sole jurisdiction and venue for all legal actions relating to this Contract will be the State and Federal courts in Travis County, Texas. Both parties consent to the jurisdiction of such courts with respect to any such actions and agree that process may be served in the manner allowed by Texas law. In any action or proceeding to enforce rights under this Contract, the prevailing party will be entitled to recover costs and attorneys’ fees.
c. If a court of competent jurisdiction finds any provision of this Contract invalid or unenforceable, that provision of the Contract will be enforced to the maximum extent permissible and the other provisions of this Contract will remain in full force and effect.
d. The parties are independent contractors.
e. Customer will not export or re-export the Products or related documentation or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.
f. No modification or amendment of any provision of this Contract will be effective unless in writing and signed by the parties’ authorized representatives.
g. The failure of either party to enforce at any time any of the provisions of this Contract will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either party to enforce each such provision thereafter. The express waiver by either party of any provision of this Contract will not constitute a waiver of any future obligation to comply with such provision.
h. This Contract and the rights hereunder are not transferable or assignable by Customer (and any attempted assignment will be void) without the prior written consent of Illumitex, except to a person or entity who acquires all or substantially all of the assets or business of Customer, whether by sale, merger or otherwise. Illumitex may assign or transfer this Contract without Customer’s consent. Subject to the foregoing, this Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
i. Illumitex will not be liable to Customer or any of its customers for any loss, expense or damage due to delays in delivery of Products or services caused by or resulting from any act of God, riot, fire, explosion, accident, flood, sabotage, war, inability to obtain fuel, power, raw materials or parts, embargo, receipt by Illumitex of orders from all sources exceeding Illumitex’s then-scheduled delivery or production capacity, or governmental laws, regulations, or orders, lockouts, strike or labor trouble, actions, or inaction of Customer, or any cause or occurrence which is beyond the reasonable control of Illumitex.
j. These terms and conditions, Illumitex’s order form for Products, and any signed nondisclosure agreement between the parties, if any, will constitute the entire agreement between the parties for the subject matter contained herein.