SALES TERMS & CONDITIONS

By placing an order (“Order”) for the purchase of any products (“Products”) with LumiTerra, Inc. (“Seller”), you (“Buyer”) agree to these Sales Terms & Conditions (the “Agreement”).

PLEASE READ THE BELOW CAREFULLY.

1. APPLICABILITY; TERM

  1. All Products that Buyer wishes to purchase from Seller will be identified in an Order which will set forth the name (or SKU number, as applicable), quantities, pricing, and FOB/shipping terms and costs, and other additional terms as may be applicable to any customization of Products to be provided by Seller, provision of samples, or other special terms mutually agreed upon by Seller and Buyer. All Orders will be governed solely by this Agreement. Any oral understandings or promises are expressly excluded. Seller shall not be deemed to have waived the terms and conditions contained herein if it fails to object to provisions appearing on, incorporated by reference in, or attached to any order form that Buyer may attempt to unilaterally impose on Seller, and those provisions are hereby expressly rejected. No contrary or additional terms or conditions contained in any Buyer order form shall apply unless agreed to in writing and signed by an authorized representative of Seller, or which shall be set forth in the form of a written amendment to this Agreement to be signed by both parties.
  2. This Agreement will continue in full force and effect for so long as any Orders are signed and remain in effect. For purposes of clarification and avoidance of doubt, each party reserves the right to reject any Order or other proposed order form submitted to it by a party without any liability whatsoever.

2. DELIVERY

Seller will ship the Products to Buyer in accordance with the delivery timelines set forth in the Order. Any shipping and handling fees shall be specified in the Order, as applicable. Title and risk of loss will transfer to Buyer when the Products are delivered to a common carrier, FOB Buyer’s destination, unless otherwise specified in any Order. 

3. EXCUSABLE DELAY

The Seller will not be liable in any way for any delay, non-delivery or default in shipment of the Products due to labor disputes, work stoppages, transportation shortage, delays in receipt of material, priorities, fires, earthquakes, floods, accidents, epidemics/pandemics, riots or insurrect, acts of any government or agency thereof, judicial acts, or other unforeseeable causes beyond the control of the Seller or its supplier (collectively, “Force Majeure Event”). If the Seller, in its sole reasonable judgment, will be prevented directly or indirectly, on account of any Force Majeure Event, from delivering the Products at the time specified in the Order, then the Seller will have the right to cancel the Order and terminate this Agreement by notice in writing to the Buyer, which notice will be accompanied by full refund of all sums paid by the Buyer (if any) pursuant to any Order. In all other cases not involving a Force Majeure Event, if the Seller fails to deliver the Products to the Buyer within the time and manner specified in any Order, the Buyer may provide written notice of the default to the Seller. If within fourteen (14) days of the notice being received, or within such other time period as agreed to by the parties, the default is not corrected, the Buyer may immediately cancel the Order, terminate this Agreement, and receive a refund of any deposit that may have been paid by Buyer to Seller pursuant to the Order.

4. INSPECTION

  1. The Buyer shall inspect and accept, or reject Products delivered pursuant to the Order immediately after Buyer receives the Products at Buyer’s designated receiving destination. In the event the Products do not conform with the applicable specifications of the Products, the Buyer shall promptly notify the Seller of such nonconformance and give the Seller a reasonable opportunity to correct any such nonconformance. The Buyer shall be deemed to have accepted any Products delivered under any Order and to have waived any such nonconformance (including any damaged or defective Products) in the event Seller does not receive notification from Buyer that the Products delivered to Buyer are nonconforming, damaged, or defective, within five (5) days after the Buyer has received the Products.
  2. Unless otherwise mutually agreed in any Order, Buyer shall have no right to conduct any inspection or audits at Seller’s facility. In the event the parties hereto mutually agree that Buyer may inspect the Products at Seller’s facility, any such inspection shall be conducted, at Buyer’s sole cost and expense, with thirty (30) days prior written notice by Buyer to Seller and at reasonable times, on a non-interference basis, and such inspection shall not include the right to establish mandatory inspection points or enter proprietary or competition-sensitive areas of Seller’s facility

5. CHANGES TO SELLER’S GOODS

Seller at all times reserves the right, and is entitled in its sole discretion, to make changes, additions or improvements to its manufacturing or procuring of any goods within the purview of Seller’s business operations whether or not such goods may be the same as any Products being delivered to Buyer under the Order without liability, or any obligation to incorporate such changes, additions or improvements into any Products manufactured, sold or delivered to Buyer prior to Seller’s incorporation of the applicable change, addition or improvement. Buyer will have the right to negotiate with Seller in order to purchase any such new or improved goods that Seller may develop and any mutual agreement to such terms will be set forth in an Order that will be governed by this Agreement.

6.  PRICES AND PAYMENTS

  1. Prices and payments will be in the United States dollars, and payment shall be made in the United States currency. All payment terms will be net thirty (30) days from date of Seller’s invoice, unless otherwise set forth in the Order. Invoices will be issued by Seller upon either the requirement of a deposit or upon full or partial quantities of the Order being delivered. Payments will be made by check, wire transfer, or ACH deposit as mutually agreed by the parties.
  2. In addition to the price of Products specified in the Order, the amount of any present or future use, excise, or similar tax applicable to the sale of the Products will be paid by the Buyer, or alternatively, the Buyer will provide the Seller with a tax exemption certificate acceptable to the applicable taxing authorities.
  3. If any Order requires payment of a deposit by Buyer, then such deposit will only be refundable in full or part before the point that any customization work on the Products has started by Seller (which date may be set forth on the Order, or will be communicated in writing by Seller to Buyer immediately after the Order has been signed), or upon the occurrent of a Force Majeure Event as set forth in Section 3 above.
  4. Seller reserves the right to modify or withdraw credit terms (if applicable) at any time without notice and to require deposits, guarantees, security or payment in advance of the amount of credit involved.
  5. In the event payments are not made by Buyer in a timely manner, Seller may, in addition to all other remedies provided at law or in equity, either:
    1. declare Buyer’s performance in breach and cancel the Order and terminate this Agreement for default;
    2. repossess the Products for which payment has not been made;
    3. withhold future shipments under the Order until delinquent payments are made in full including any interest as set forth in (5) below;
    4. deliver future shipments under the Order on a cash with Order or cash in advance basis even after the delinquency is cured;
    5. charge interest on the delinquency at a rate of 1-1/2% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges, or inventory carrying charges; or
    6. recover all costs of collection including reasonable attorney’s fees; and
    7. at Seller’s option combine any of the above rights and remedies as provided by law.
  6. Any refund will not include costs of delivery or installation/de-installation (if applicable). Those costs will be borne by the Buyer.
  7. Seller will have the right to offset any amounts that may be payable to Buyer from any amounts due to Seller by Buyer.

7. CANCELLATION/TERMINATION

The Seller reserves the right to cancel any Order and terminate this Agreement immediately upon written notice at any time:

  1. if the Buyer fails to pay for any shipment when due pursuant to the applicable invoice; or
  2. in the event of any sale of all or substantially all of Buyer’s assets or business, or in the event of Buyer’s insolvency or bankruptcy.

8.  WARRANTY

  1. THE PRODUCTS ARE SOLD ‘AS IS’ AND THE SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. The Seller does not assume, or authorize any other person to assume on the behalf of the Seller, any liability in connection with the sale of the Products.
  2. Buyer must notify Seller in writing of any nonconformance, damage, or defect of any Product within the inspection period as specified in Section 4 above and return the Product to Seller within thirty (30) days after such discovery. Prior to return of the Product to Seller, Buyer must obtain a Return Material Authorization (“RMA”) from Seller. Seller reserves the right to return to Buyer any Product received without a valid RMA. In the event Seller is unable to reasonably confirm Buyer’s reported nonconformance/damage/defect, Buyer agrees to pay Seller an applicable “Evaluation/No Defects Found Charge”, the amount of which shall be as specified in Seller’s Return Material Authorization.​
  3. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND.

9. CLAIMS

  1. The Buyer’s failure to give notice of any claim within ten (10) days from the date of delivery of Products will constitute an unqualified acceptance of the applicable Products and a waiver by the Buyer of all claims with respect to the Products.
  2. Each party  agrees that all actions, claims and disputes arising under this Agreement shall be brought, if at all, within twelve (12) months of the date on which the material facts or circumstances giving rise to the claim or dispute occurred.

10. REMEDIES

The Buyer’s exclusive remedy and the Seller’s limit of liability for any and all losses or damages resulting from nonconforming, damaged, or defective Products will be for the applicable price paid by Buyer for the particular delivery of those Products with respect to which losses or damages are claimed, plus any transportation charges actually paid by the Buyer.

11.  NOTICES

Any notice to be given or document to be delivered to either the Seller or Buyer pursuant to this Agreement will be sufficient if delivered via email, or sent by prepaid registered mail to the address of Seller specified below, or to the address of the Buyer as set forth in an applicable purchase order or other written order/billing document. Any written notice or delivery of documents will have been given, made and received on the day of email delivery, or on the third (3rd) consecutive business day next following the date of mailing if sent by prepaid registered mail:

SELLER:

LumiTerra, Inc.

1945 N. Berendo St.

Los Angeles, CA 90027

Attn: Kevin Diamond, CEO Email: [email protected]

12. APPLICABLE LAW; VENUE

This Agreement and any Orders (including Orders submitted via written purchase orders or other written documents) will be governed by and construed in accordance with the laws of the State of California. Except as otherwise specifically agreed in writing by Buyer and Seller, any dispute relating to an Order placed by a Buyer incorporated in the United States which is not resolved by the parties shall be adjudicated in the federal or state courts in the state of California in Los Angeles County . Each party accepts the jurisdiction of such courts, and Buyer irrevocably waives any objection, including without limitation any objection to the laying of venue or based on the grounds of forum non-conveniens. The Seller and Buyer expressly agree to exclude from this Agreement the United Nations Convention on Contracts for the International Sale of Goods 1980, and any successor thereto.

13.  CONFIDENTIALITY

Buyer will treat all information furnished by Seller, or its supplier(s) as confidential and will not disclose any such information to any third party, or use such information for any purpose other than performing Buyer’s obligations under the Order and this Agreement, except that Buyer may disclose such information solely: (i) to Buyer’s employees, accountants, independent contractors, agents, and attorneys on a need-to-know basis, and (ii) under the terms of a subpoena or order issued by a court of competent jurisdiction or under a civil investigative demand or similar process, provided Buyer agrees (a) to promptly notify Seller of the existence, terms, and circumstances surrounding such a request, and (b) if Buyer is, in the opinion of its counsel, compelled to disclose a portion of such information, Buyer discloses only that portion of the information that Buyer’s counsel advises that Buyer is compelled to disclose, and will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to such information.  Neither party will issue any press or publicity release or statement relating to this Agreement without the prior written approval of the other party.

14. TRADEMARK AND COPYRIGHT INDEMNITY

  1. a. If applicable to the Products being purchased by Buyer under an Order, by submitting designs or artwork to Seller, Buyer, warrants and represents that it is the owner or authorized licensee of any trademarked or copyrighted materials contained therein. The unauthorized use of trademarked or copyrighted materials is a violation of intellectual property laws. Seller will not print, infuse, or otherwise attach any artwork containing trademarked or copyrighted materials for the Buyer where Buyer is not the owner or authorized licensees of such trademarked or copyrighted materials and Seller reserves the right to refuse or stop the processing of the Order. In addition, Seller reserves the right to request proof of ownership or authorized licensee status from Buyer prior to proceeding with developing, designing or manufacturing any Products under any Order.
  2. Buyer agrees to the fullest extent of the law, to indemnify, defend, and hold harmless the Seller, its parent and affiliates, and each of their respective directors, officers, shareholders, employees, suppliers, representatives and agents (collectively, “Seller Indemnified Parties”) from and against all claims, demands, suits, liabilities, costs, expenses (including attorneys’ fees and court costs), damages and losses suffered or incurred by the Seller Indemnified Parties arising out of or in connection with: (i) any actual or alleged infringement of a third party’s intellectual property rights arising out of the use of trademarked or copyrighted materials in the Order, or (ii) any breach or default by Buyer of any of its representations, warranties, and obligations under this Agreement.
  3. Seller additionally reserves the right to exercise in its sole discretion what is or is not acceptable for inclusion with the Products and may at any time reject the Order based on content provided by Buyer that exhibits vulgar, profane, or offensive language, imagery containing obscenity or nudity, and/or that is unlawful, harmful, threatening, harassing, defamatory, obscene, vulgar, hateful, invasive of another’s privacy, or otherwise denigrates any person or entity.

15.  GENERAL PROVISIONS

  1. Headings are inserted for convenience only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
  2. All representations and warranties of the Seller contained in this Agreement will survive the termination of this Agreement.
  3. This Agreement cannot be modified in any way except in writing signed by all the parties to this Agreement.
  4. This Agreement will inure to the benefit of and be binding upon the Seller and the Buyer and their respective successors and permitted assigns.
  5. This Agreement may be executed in counterparts. Electronic and PDF signatures are binding and are considered to be original signatures.
  6. This Agreement and the Order constitutes the entire agreement between the parties and supersedes all previous agreements of the parties whether oral or written in connection with the subject matter hereof. The Buyer acknowledges that it has not relied upon any representations of the Seller as to prospective performance of the Products, but has relied upon its own inspection and investigation of the subject matter.
  7. Each party will procure and maintain at its sole cost and expense throughout the term of this Agreement where any Order has been signed and remains in effect, and for a period of one (1) year following termination or expiration of this Agreement, the following insurance policies, covering each party’s respective obligations hereunder: (a) commercial general liability insurance policy  with limits no less than One  Million U.S. Dollars (U.S.$1,000,000) per occurrence and Two Million U.S. Dollars (U.S.$2,000,000) in the aggregate; (b) a product liability insurance policy with limits no less than One Million U.S. Dollars (U.S.$1,000,000) per occurrence and Two Million U.S. Dollars (U.S.$2,000,000); and (c) workers’ compensation policy with applicable statutory limits.

16. ASSIGNMENT

The Buyer may not assign its right or delegate its performance under this Agreement without the prior written consent of the Seller, and any attempted assignment or delegation without such consent will be void. An assignment would change the duty imposed by this Agreement, would increase the burden or risk involved and would impair the chance of obtaining performance or payment.

17. WAIVER

Failure by Seller to assert all or any of its rights upon any breach of this Order shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver be implied from the acceptance of any payment or service. No waiver of any right shall extend to or affect any other right Seller may possess, nor shall such waiver extend to any subsequent

18. SEVERABILTY

If any section or portion thereof of this Agreement is held unconscionable by any court of competent jurisdiction, arbitration panel or other official finder of fact, the section or applicable portion thereof will be deleted from this Agreement and the balance of this Agreement will remain in full force and effect.