Unless otherwise specifically agreed to in writing by an authorized officer of Fusion Optix, Inc. (“Seller”), the following Sales Terms & Conditions contained herein shall apply to any and all orders placed by Buyer for any and all Seller’s products and/or services.

1. SPECIFICATIONS. The determination of the suitability of any Seller’s products to the specific needs of the Buyer is solely the Buyer’s responsibility. All information has been carefully compiled from experience gained in the laboratory and under commercial condition in a wide range of applications. However, the product’s performance and its suitability depend heavily on the particular conditions of use. Seller assumes no responsibility for suitability or use of its products in any lighting products or other applications. Seller recommends that customers satisfy themselves that each product meets their requirements in all respects.
2. ACCEPTANCE OF ORDERS. Seller’s acceptance of all orders and all offers and sales by Seller are subject to and expressly conditioned upon Buyer’s assent to the terms and conditions contained herein. Seller’s quotation, if any, and Seller’s order acknowledgement. Buyer’s acceptance of any offer by Seller must be made on such terms and conditions exactly as offered by Seller. Any of Buyer’s terms and conditions which are different from or in addition to those contained in this Agreement are objected to by Seller and shall be of no effect unless specifically agreed to in writing by Seller. Commencement of performance or shipment shall not be construed as acceptance of any of Buyer’s terms and conditions which are different from or in addition to those contained in the Agreement. If a contract is not earlier formed by mutual agreement in writing, acceptance by Buyer of products or services furnished by Seller pursuant hereto shall be deemed Buyer’s assent to all of the terms and conditions of this Agreement.

This Agreement shall be governed by the laws of the State of Massachusetts as if made and to be performed entirely within such state. The UN Convention on the International Sale of Goods shall not apply. Dollar amounts are expressed in U.S. dollars.

3. PRICES. Offers to sell are subject to change without notice, unless expressly stated to be firm for a definite period, and in all cases are subject to withdrawal at any time before acknowledgment by Buyer. Under no condition will any quotation remain in effect for longer than 30 days. The prices stated on quotations or marketing materials are based upon shipment of the quantities shown and on the basis of the delivery schedule described. In the event the quantity of Products ordered is reduced and/or the delivery schedule is extended, the price for the Product already shipped, as well as the price of the Product for future delivery, will be adjusted to conform to the price schedule applicable for the smaller quantity and/or extended delivery. Orders may not be cancelled or modified, either in whole or part, without Seller’s express written consent. If Seller consents to any order modification or cancellation, it may impose an order modification or cancellation fee. All prices are as stated in Seller’s quote and specifically override any prices referenced in Buyer’s purchase order. Prices for orders for immediate shipment are prices in effect at time of receipt of order. Qualifying orders specifying future delivery will be invoiced at prices and terms in effect at time of shipment.
4. TERMS OF PAYMENT. All payments shall be in U.S. dollars. Buyer shall pay for products in cash upon delivery, unless an earlier or later time for payment is specified in the order acknowledgement (in which case payment shall be due at the time so specified). Each shipment shall be considered a separate and independent transaction and payment for each shipment shall be due accordingly.

Seller may, at its option, elect to extend credit to Buyer. There are no discounts for early payment. If Seller extends credit to Buyer, invoices will be issued upon shipment and payment shall be due in full within thirty (30) days from the invoice date or such other date specified in the Agreement. Seller reserves the right to change the amount of or withdraw any credit extended to Buyer. Amounts not paid when due shall be subject to interest at the rate of one and one-half percent (1½%). In the event of default in payment of the purchase price or any part thereof, Buyer agrees to pay Seller’s expenses, including reasonable attorney’s fees and expenses, incurred by Seller in enforcing payment thereof, including all expenses incurred in connection with any arbitration or judicial proceeding.

5. TAXES. Buyer shall pay all taxes imposed upon or in any way connected with the manufacture, use, sale, possession or delivery of goods ordered, unless Buyer furnishes us with appropriate tax exemption certificates. Such taxes shall be billed separately, unless otherwise required by law.
6. DELIVERY, TITLE & RISK OF LOSS. Most standard products are made to order and thus have an associated lead time. Seller will attempt to meet requested delivery dates, but in no event shall Seller be subject to liquidated, special, consequential or other damages for any delays or failures to comply with requested delivery dates, however caused.

Buyer agrees to accept deliveries of goods shipped by Seller which are not less than or in excess of 10 percent of the quantity ordered.

All shipments will be made F.O.B. Seller factory, unless different arrangements were specifically agreed upon before any sales interactions occur. Absent specific shipping instructions, methods of shipment will be determined by Seller.

Risk of loss shall pass to the buyer upon delivery of goods to the carrier, irrespective of methods of shipment or payment.

All products must be inspected upon receipt and claims filed by Buyer with the transportation company when there is evidence of shipping damage, either concealed or external.

7. PERFORMANCE. Seller will make a reasonable effort to observe the dates specified herein or such later dates as may be agreed to by Buyer for delivery or other performance, but Seller shall not be liable for any delay in delivery or failure to perform due to acceptance of prior orders, strike, lockout, riot, war, fire, acts of God, accident, delays caused by any subcontractor or supplier or by Buyer, technical difficulties, failure or breakdown of machinery or components necessary for order completion, inability to obtain or substantial rises in the price of labor or materials or manufacturing facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation, order or direction, whether valid or invalid, of any governmental authority or instrumentality thereof, or due to any circumstances or any causes beyond its reasonable control, whether similar or dissimilar to the foregoing and whether or not foreseen. As used herein, “performance” shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing and warranty repair and replacement, as applicable.

Buyer agrees that any delay in delivery or failure to deliver or perform any part of this Agreement shall not be grounds for Buyer to terminate or refuse to comply with any provisions hereof and no penalty of any kind shall be effective against Seller for such delay or failure; provided, however, that if the delay or failure extends beyond six (6) months from the originally scheduled date either party may, with written notice to the other, terminate this Agreement without further liability for the unperformed part of this Agreement.

In the event of the bankruptcy or insolvency of Buyer, or the filing of any proceeding by or against Buyer under any bankruptcy, insolvency or receivership law, or in the event Buyer makes an assignment for the benefit of creditors, Seller may, at its election and without prejudice to any other right or remedy, exercise all rights and remedies granted Seller in Section 7 as in the case of a default by Buyer under this Agreement.

8. ACCEPTANCE. All products and services delivered hereunder shall be deemed accepted by Buyer as conforming to the Sales Terms & Conditions contained herein, and Buyer shall have no right to revoke any acceptance, unless written notice of the claimed nonconformity is received by Seller within sixty (60) days of delivery thereof. Notwithstanding the foregoing, any use of a product by Buyer, its agents, employees, contractors or licensees, for any purpose, after delivery thereof, shall constitute acceptance of that product or service by Buyer.
9. CANCELLATION & TERMINATION. No cancellation of orders will be permitted, unless agreed to in writing by an authorized representative of us. Upon cancellation of any order, Buyer shall reimburse us for all costs resulting from cancellation of the order including labor, material, set-up, manufacturing and all other costs incidental to cancellation of such order.

Seller may terminate any quotation/order in whole or in part if (i) Buyer fails to comply with any one or more of the terms and conditions contained herein; (ii) Buyer ceases to conduct its operations in the normal course of business or is unable to meets its obligations as they mature; (iii) any proceedings in bankruptcy or insolvency are brought by or against Buyer; (iv) a receiver for Buyer is appointed or applied for; (v) an assignment for the benefit of creditors is made by Buyer.

10. PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS. The sale of products or provision of services hereunder does not convey any express or implied license under any patent, copyright, trademark or other proprietary rights owned or controlled by Seller, whether relating to the products sold or any manufacturing process or other matter. All rights under any such patent, copyright, trademark or other proprietary rights are expressly reserved by Seller. Furthermore, Buyer agrees not to infringe, directly or indirectly, any patents of Seller or its subsidiaries with any combination or system incorporating a product sold hereunder.

All drawings, blueprints and specifications submitted by the Buyer to Seller in connection with any quotation or order shall remain the property of the Buyer, and upon completion of deliveries hereunder, or upon termination or cancellation thereof, shall be promptly returned to Buyer, upon written request by the Buyer.

Seller will defend any suit or proceeding brought against Buyer insofar as such suit or proceeding is based on a claim that the design or manufacture of products furnished hereunder which were manufactured solely to Seller’s designs and specifications infringe any U.S. patent issued as of the date of shipment, provided Seller is promptly notified in writing of such suit or proceeding and is given full authority, information and assistance by Buyer for such defense. Seller will pay all damages and costs based on such claim of infringement which are finally awarded against Buyer in any such suit or proceeding or paid by way of settlement, but Seller shall have no liability whatsoever with respect to any settlement made by Buyer without Seller’s prior written consent, which Seller may withhold in its sole discretion. If such products are held to infringe any U.S. patent and their use or sale is enjoined, or if in the opinion of Seller such products are likely to become the subject of such a claim of infringement, Seller may, in its sole discretion and at its own expense, either procure a license which will protect Buyer against such claim without cost to Buyer, replace such products with non-infringing products, or require return of such products and refund an equitable portion of the price paid by Buyer to Seller for such products.

The foregoing states Seller’s sole liability for any claim based upon or related to any alleged infringement of any patent or other intellectual property rights. Seller shall have no liability for any claim of infringement or damages based on a combination of products furnished under this Agreement with products, equipment or materials not furnished hereunder, or based upon any items made with the products furnished under this Agreement.

Buyer shall defend and hold Seller harmless against any expense, loss, costs or damages resulting from any claimed infringement of patents, trademarks or other intellectual property rights arising out of compliance by Seller with Buyer’s designs, specifications or instructions.

11. LIMITED WARRANTY. Seller shall provide to the original purchaser a limited warranty for each of Seller’s commercial grade products provided under this Agreement. The terms, limitations and exclusions for the limited warranty for each product are available at www.fusionoptix.com/warranty. Seller reserves the right to modify its limited warranty at any time in its sole discretion. Seller warrants that its products furnished under this Agreement will conform to and perform in accordance with Seller’s published specifications for such products as in effect on the date of shipment (within the deviations specified therein) for a period of ninety (90) days from such date. Seller’s liability and Buyer’s sole remedy under this warranty is limited to repair or replacement of items determined by Seller to be defective or, at Seller’s sole option, refund of the purchase price paid Seller for such items. Seller shall have no liability under this warranty unless Seller is notified in writing promptly upon Buyer’s discovery of the defect and the defective items are returned to Seller, freight prepaid, and received by Seller not later than ten (10) days after expiration of the warranty period.

This warranty shall not apply to any defect or failure to perform resulting from misapplication, improper installation, improper operation, abuse or contamination, whether internal or external, and Seller shall have no liability of any kind for failure of any equipment or other items in which the products are incorporated. This warranty shall not apply to products manufactured by Seller to Buyer’s designs or specifications, and no warranty is given as to such non-standard products unless otherwise specifically agreed to in writing by Seller.

Seller warrants to Buyer that services provided hereunder will be performed in a reasonable, workmanlike manner. Seller will have no liability under this warranty unless Seller is given written notice of the claimed breach and a description thereof within ninety (90) days after the service is rendered. Seller’s entire liability and Buyer’s sole remedy under this warranty shall be limited to the provision of such remedial or replacement services as Seller reasonably determines necessary to correct the breach.

THE FOREGOING WARRANTY PROVISIONS ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY AGAINST INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Remedies of Buyer for any breach of warranty are limited to those provided herein to the exclusion of all other remedies, including, without limitation, incidental or consequential damages. No warranty or agreement varying or extending the foregoing warranty and limitation of remedy provisions may be relied upon by Buyer unless it is in writing and signed by the President or a Vice President of Seller. No representation or affirmation of Seller, whether by words or action, shall be construed as a warranty. If any model or sample was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of the products and not to represent that the products would necessarily conform to the model or sample.

12. LIMITATION OF LIABILITY AND CLAIMS. SELLER’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL IN NO EVENT EXCEED THE AMOUNT, IF ANY, RECEIVED BY SELLER HEREUNDER. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL LOSS OR DAMAGES OF ANY KIND, HOWEVER CAUSED, OR ANY PUNITIVE, EXEMPLARY OR OTHER DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR PRODUCTS OR SERVICES FURNISHED BY SELLER MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED.
13. PRODUCT SAFETY. Buyer shall comply fully with all industry safety standards applicable to the manufacture, distribution or sale of items incorporating the products supplied by Seller, including but not limited to American National Standards Institute (ANSI)/Illuminating Engineering Society of North America (IESNA) RP-27 (or equivalent eye safety labeling standards) and International Standard IEC 62471-2006, published by the International Electrotechnical Commission, including all marking, labeling, and supplemental user and service information (if any) required by the standards, where applicable. Buyer shall comply fully with all applicable safety-related laws, rules and regulations of any governmental body having jurisdiction to regulate the manufacture, distribution or sale of items incorporating the products supplied by Seller. Buyer shall obligate all persons and entities buying such products from Buyer (other than end users) to comply with such industry standards, laws, rules or regulations applicable to such person or entity. Buyer shall defend and hold Seller harmless against any expense, loss, costs or damages relating to any claimed failure by Buyer to comply with such industry standards, laws, rules or regulations or from any bodily injury, illness or property damage resulting from products manufactured by Buyer which incorporate the products supplied by Seller.
14. EXPORT CONTROL. Seller’s export of the products, and any technical information related thereto, may be subject to United States and/or other national or international (e.g., UN) laws and regulations controlling the export and re-export of technical data and products, or limiting the export of certain products to specified countries (e.g., embargo regulations). Seller shall not be obligated under these Sales Terms & Conditions to export, transfer or deliver any products or related technical information to Buyer if prohibited by applicable law or until all necessary governmental authorizations have been obtained. Seller shall not be liable under these Sales Terms and Conditions for any expenses or damages resulting from failure to obtain or delays in obtaining any required government authorizations. Buyer shall comply fully with all export administration and control laws and regulations of the U.S. government and/or other national or international (e.g. UN) laws and regulations as may be applicable to the export, re-export, resale or other disposition of any products purchased from Seller.
15. GENERAL. If the products purchased from Seller are to be used in the performance of a government contract or subcontract, no government requirements or regulations shall be binding upon Seller unless specifically agreed to by Seller in writing. The section headings contained herein are for convenience of reference only and are not to be used in the construction or interpretation of this Agreement.
16. ENTIRE AGREEMENT. The Sales Terms & Conditions contained herein constitute the entire agreement of the parties and supersedes all prior negotiations, proposals, agreements and understandings, whether oral or written, relating to the products to be purchased hereunder or otherwise relating to the subject matter of this Agreement. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding on Seller. No modification, amendment, rescission, waiver or other change in these Sales Terms & Conditions shall be binding on Seller unless agreed to in writing by Seller. The invalidity or unenforceability, in whole or in part, of any provision herein shall not affect the validity or enforceability of any other provision herein. Failure or delay on the part of either party to exercise any right, power, privilege or remedy herein shall not constitute a waiver thereof.
17. ARBITRATION. Any controversy or claim (including, without limitation, any claim based on negligence, misrepresentation, strict liability or other basis) arising out of or relating to this Agreement or its performance or breach, which involves an amount in excess of $50,000 (exclusive of interest and costs), shall be settled by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce, if arbitration is demanded by either party. The location of the arbitration shall be the Commonwealth of Massachusetts. The decision in such arbitration shall be final and binding and any award rendered thereon may be entered in any court having jurisdiction.