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Terms of Sale

  1. ACCEPTANCE OF TERMS.  All Sales by Daylight Solutions and its subsidiaries and affiliates (“Daylight Solutions”) to Buyer of the units of products specified in the document to which these Terms of Sale are attached (the “Products”) will be governed by these terms and conditions (these “Terms of Sale”).  If the terms and conditions of any offer from Buyer or any other Buyer document differ from these Terms of Sale, these Terms of Sale shall be construed as a counteroffer and will not be effective as an acceptance of Buyer’s terms and conditions, which are hereby rejected.  THESE TERMS OF SALE SHALL BE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS OF AGREEMENT BETWEEN BUYER AND DAYLIGHT SOLUTIONS.  Buyer’s failure to object to these Terms of Sale in writing within five (5) days of receipt thereof or Buyer’s acceptance of the Products shall constitute acceptance of these Terms of Sale.  No addition to or modification of these Terms of Sale will be effective unless made in writing signed by Daylight Solutions.
     
  2. QUOTATIONS AND PRICES.  If the document to which these Terms of Sale are attached (the “Document”) is a price quotation, such quotation is valid for thirty (30) days.  Unless otherwise stated in writing by Daylight Solutions, all prices set forth on the Document shall be exclusive of shipping, insurance, taxes, license fees, customs duties and other charges related thereto, and Buyer shall pay all such charges related thereto; provided that, if Daylight Solutions, in its sole discretion, chooses to pay any such charges, Buyer shall reimburse Daylight Solutions therefore in full upon demand.  Any volume-based discounts set forth in the Document will be rescinded if Buyer fails to meet the conditions outlined in the Document and/or the corresponding Daylight Solutions quotation.
     
  3. PAYMENT.  Except as otherwise specified, all payments are due and payable in U.S. dollars within thirty (30) days from the invoice date.  Daylight Solutions reserves the right to require alternative payment terms, including, without limitation, a letter of credit or payment in advance. Payments not made by the due date may incur, at the sole discretion of Daylight Solutions, a late payment service charge of the lesser of one and one-half percent (1-1/2%) per month or the maximum rate permitted by law, computed from the date payment was due.  All payments, including deposits shall be non-refundable.  Daylight Solutions shall retain a purchase money security interest and/or other security interest in the Products, and in any proceeds thereof, including insurance proceeds, until Buyer has made all payments required hereunder.  Buyer agrees to take any acts (including executing and delivering all documents) reasonable requested by Daylight Solutions to protect, maintain, and perfect Daylight Solutions’ security interest.
     
  4. SHIPPING.  Shipping and delivery dates are estimates only, and in no event shall Daylight Solutions be liable for any delay in delivery or assume any liability in connection with shipment.  All Products shall be delivered F.O.B. origin Daylight Solutions’ place of shipment. Shipment costs shall be prepaid by Buyer if requested by Daylight Solutions.  If Daylight Solutions insures shipment, Buyer shall pay insurance costs as invoiced by Daylight Solutions.  Risk of loss and damage thereto shall pass to Buyer upon Daylight Solutions’ tender of delivery thereof to a carrier at the F.O.B. origin point, and any loss or damage thereafter shall not relieve Buyer from any payment obligation.  The carrier shall not be deemed an agent of Daylight Solutions.
     
  5. WARRANTY.  Daylight Solutions hereby warrants to Buyer, that during the applicable Warranty Period (as defined below) the Products will conform to Daylight Solutions’ published specifications and will be free of defects in materials or workmanship when used, installed and maintained in accordance with Daylight Solutions’ published specifications.  Daylight Solutions’ sole liability and Buyer’s sole and exclusive remedy for breach of warranty shall be limited to, at Daylight Solutions’ option, either repairing or replacing the defective components of the Product or crediting Buyer for the amount Buyer has paid to Daylight Solutions for the applicable Product.  Daylight Solutions’ liability shall apply only to Products which are returned to the factory or authorized repair point, with shipping charges prepaid by Buyer, and which are, after examination, determined to Daylight Solutions’ satisfaction to be defective due to defects in materials or workmanship.  Daylight Solutions will only accept returns authorized by a Daylight Solutions customer service representative and with a valid RMA number.  This warranty does not apply to Products which are designated by Daylight Solutions as “Pre-Production Products”, e.g. Alpha, Beta or Prototypes or are Products which have been repaired or modified without Daylight Solutions’ written approval, or subjected to unusual physical, thermal, optical or electrical stress, improper installation or cleaning, misuse, abuse, accident or negligence in use, storage, transportation or handling. The warranty period for Daylight Solutions Tunable Lasers shall be one (1) year after date of original shipment or 2000 hours of use, whichever occurs first.  For any customized, build-to-order, otherwise non-standard and/or are subject of a blanket purchase order – one (1) year after date of original shipment unless otherwise agreed in writing. For products that are discontinued, Daylight Solutions’ liability shall terminate at the end of the applicable Warranty Period or one (1) year from the date of discontinuity, whichever occurs first.  Except for the warranty stated herein and to the extent permitted by applicable law DAYLIGHT SOLUTIONS SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
     
  6. LIMITATION OF LIABILITY.  To the extent not prohibited by applicable law: (a) Daylight Solutions’ aggregate liability to Buyer for claims relating to the Products, whether for infringement, breach or in tort, including negligence, is limited to the amounts Buyer has paid to Daylight Solutions for the Products; and (b) DAYLIGHT SOLUTIONS WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS OF SALE, THE DOCUMENT, THE PRODUCTS OR THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE OR NON-PERFORAMANCE OF THE PRODUCTS (INCLUDING, BUT NOT LIMITED TO, REPLACEMENT COSTS OR LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), HOWEVER THEY ARISE, WHETHER FOR BREACH OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF DAYLIGHT SOLUTIONS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  The parties acknowledge that if Daylight Solutions provides the Products to Buyer it does so in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between parties.  Liability for damages will be limited and excluded as set forth in this paragraph, even if any exclusive remedy provided for in these Terms of Sale fails of its essential purpose.
     
  7. INTELLECTUAL PROPERTY RIGHTS.  Any intellectual property rights on a worldwide basis, including, without limitation, patentable inventions (whether or not applied for), patents, patent rights, copyrights, work of authorship, moral rights, trademarks, service marks, trade names, trade dress trade secrets and all applications and registrations of all the foregoing resulting from the performance of these Terms of Sale that is conceived, developed, discovered or reduced to practice by Daylight Solutions, shall be the exclusive property of Daylight Solutions.  Specifically, Daylight Solutions shall exclusively own all rights, title and interest (including, without limitation, all intellectual property rights throughout the world) in and to the Products and any and all inventions, works of authorship, layouts, know-how, ideas or information discovered, developed, made, conceived or reduced to practice, by Daylight Solutions, in the course of the performance of these Terms of Sale.   Reverse engineering for is prohibited.
     
  8. CHANGES, DELAYS OF SHIPMENT, OR CANCELLATION.  Buyer’s order for standard product and OEM, or custom products may only be changed, delayed, or cancelled with the prior written consent of Daylight Solutions.  If Daylight Solutions, in its sole discretion, accepts such change, delay or cancellation, buyer shall compensate Daylight Solutions for any resulting loss or damage including, without limitation, the cost of labor, materials, and overheard expenses or upon cancellation, a fee for minimum of sixty-five (65) percent of the amount remaining on the purchase order as of the date of cancellation.  In addition, customer initiated delays of shipments exceeding 180 days from the original delivery date will be deemed a cancellation and fall under the cancellation policy.
     
  9. REMEDIES.  Daylight Solutions shall have the right to terminate any order, or to delay the shipment thereof, by reason of Buyer’s bankruptcy or insolvency, breach of any terms herein, unauthorized assignment, any pending proceedings against Buyer under any statute for the relief of debtors.
     
  10. EXPORT CONTROL.  Buyer shall comply with all applicable laws, regulations and treaties relating to the sale and destination of the Products, including, without limitation, U.S. export control regulations.  Buyer agrees not to sell any of the Products in any territory or country prohibited by applicable U.S. laws and to obtain representatives from its customers that they will not resell or transfer any of the products to such countries or territories.  Buyer will defend, indemnify and hold Daylight Solutions harmless for any damages or costs to Daylight Solutions arising from Buyer’s failure to comply with these terms.
     
  11. INSPECTION.  All Products delivered hereunder shall be deemed accepted by Buyer, unless written notice of defect or nonconformity is received by Daylight Solutions within ten (10) days of receipt of  Products at Buyer’s designated receiving address; provided that Buyer may only reject Products for failure to meet the Products’ specifications.
     
  12. MISCELLANEOUS.  Nothing in these Terms of Sale or the sale of the Products shall imply any license or other rights with respect to any intellectual property rights of Daylight Solutions or its suppliers, and Daylight Solutions reserves all such rights.  All waivers of any right hereunder must be in writing and signed by Daylight Solutions.  Waiver of a breach by the other party of any provision of these Terms of Sale shall not be deemed a waiver of future compliance therewith, and such provision shall remain in full force and effect.  If any provision of these Terms of Sale is held invalid by any U.S. law or regulation or by any U.S. court having valid jurisdiction, such invalidity will not affect the enforceability of other provisions.  These Terms of Sale and Buyer’s rights hereunder may not be assigned by Buyer without the prior written consent of Daylight Solutions, and any unauthorized assignment by Buyer shall be void.  Buyer may not resell the Products in competition with Daylight Solutions.  Subject to the changes, delays or cancellation terms in Section 8, all sales are final for shipments.  These Terms of Sale shall be governed by the laws of the State of California without reference to any conflict of law rule that would cause the application of the laws of any other jurisdiction and without regards to the U.N. Convention on Contracts for the International Sales of Goods.  Buyer and Daylight Solutions expressly agree that any disputes under these Terms of Sale shall be resolved exclusively in the District Court for the Southern District of California or in the Superior Court of California, County of San Diego.  These Terms of Sale constitute the entire agreement between Buyer and Daylight Solutions with respect to Buyer’s purchase of the Products and supersedes all prior agreements and understandings with respect to such purchase and may not be changed or amended, or superseded by conflicting terms and conditions submitted by Buyer, except by a written instrument signed by an authorized Daylight Solutions representative.