THESE STANDARD TERMS AND CONDITIONS APPLY TO ALL PURCHASES WHETHER OR NOT SUCH PURCHASE IS SUBJECT TO A SIGNED PURCHASE ORDER AGREEMENT OR DISTRIBUTION AGREEMENT BETWEEN PROMICEEN AND THE PURCHASER.
The following shall govern all orders for Products by Purchaser and sales of Products by Shenzhen Wisdom Light Co., Ltd. LED to Purchaser from and after January 1, 2009. Shenzhen Wisdom Light Co., Ltd reserves the right to forward any order for Products to an authorized Shenzhen Wisdom Light Co., Ltd distributor.
Shenzhen Wisdom Light Co., Ltd or, if applicable, such distributor, shall be referred to herein as the Manufacturer. The terms herein may be updated by Shenzhen Wisdom Light Co., Ltd from time to time. Ordering Products from Manufacturer constitutes acceptance of the terms set forth herein, as such terms may be updated. Any different, conflicting or additional terms in any purchase order or other writing from Purchaser or in any order acknowledgment or other writing from Manufacturer shall be of no force or effect unless acknowledged and executed by an officer of Manufacturer.
Purchaser shall forward all purchase orders to Manufacturer. Orders shall be deemed accepted unless rejected by Manufacturer in writing within ten (10) days of the date thereof. After acceptance of the Purchaser's order, it shall not be subject to cancellation. All sales are final. No product will be accepted for return and no credit will be allowed on any product returned unless Manufacturer has granted prior written permission. All returns shall be subject to Manufacturer's Products Return Policy, which includes provisions for authorization procedures, packaging, shipment and restocking charges, if applicable. All orders must be professionally installed according to specifications provided by Manufacturer.
Unless otherwise stated in Manufacturer's invoice or agreed to by the parties, orders shall be fully prepaid before shipping. The terms of payment are also subject to review of Purchaser's credit by Manufacturer. Unless otherwise agreed to by Manufacturer, payment shall be by wire transfer to Manufacturer's account at a commercial bank Manufacturer shall designate, by check to be drawn on Purchaser's corporate account, or by Manufacturer's draw upon a bank letter of credit satisfactory in form and substance to Manufacturer. All payments by Purchaser shall be made in United States Dollars and shall be paid fully, without set-off, deduction or counterclaim.
Prices do not include any taxes or other governmental charges, including, without limitation, value-added, sales, use or privileges taxes, or excise or similar taxes levied by any government, now or hereafter enacted. In Manufacturer's discretion, any such taxes and charges may be added to the price for any products or may be billed separately. The Purchaser will, in any event, pay all such taxes and charges, on or before their due dates. In the event Manufacturer is required at any time to pay any such tax or charge, the Purchaser will reimburse Manufacturer promptly on demand. If any governmental agency requires Purchaser to withhold any portion of the gross payment due to Manufacturer, then such payment shall be increased by an amount such that the amount actually remitted to Manufacturer is equal to the amount that would have been remitted had there been no such withholding.
If the Purchaser fails to pay the price or any other payment due to Manufacturer promptly and when due, Manufacturer may recover, in addition to the price or payment, interest thereon at a rate equal to the lesser of 1-1/2% per month and the maximum rate of interest allowable under applicable law.
Dates of all shipments are estimated and not guaranteed. All products will be tendered and shipped F.O.B. Manufacturer's plant or warehouse and may be so tendered in several lots. In the absence of specific instructions, Manufacturer will select the carrier and ship freight prepaid and added to the price of the relevant Product (except that surface freight for non-expedited orders in excess of $10,000 will be paid by Manufacturer). In cases where Purchaser, for any reason, requests deliveries of Products on a basis that is not in conformity with Manufacturer's standard shipping procedures, Purchaser shall be responsible for all such costs associated with premium freight and any resulting overtime required in order to make deliveries in conformance with Purchaser's required delivery schedule. Manufacturer will not be deemed to assume any liability in connection with any shipment because of the selection of a carrier or its failure to obtain insurance. Title and risk of loss or damage to each of the Products will pass to the Purchaser when delivery is made to the possession of the carrier.
Manufacturer will make a reasonable effort to observe the dates specified herein or such later dates as may be agreed to by Purchaser for delivery or other performance, but Manufacturer shall not be liable for any delay in delivery or failure to perform due to acceptance of prior orders, strike, lockout, riot, war, fire, act 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.
Purchaser agrees that any delay in delivery or failure to deliver or perform any part of this Order shall not be grounds for Purchaser to terminate or refuse to comply with any provisions hereof and no penalty of any kind shall be effective against Manufacturer 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 Order without further liability for the unperformed part of this Order.
Any technical, financial or other information provided by Manufacturer to Purchaser and designated as confidential or proprietary (“Confidential Information”) shall be held in confidence and not disclosed or, except as provided in the next sentence, used by Purchaser . This obligation will not apply to information that is generally and freely publicly available through no fault of Purchaser, or that Purchaser otherwise rightfully obtains from third parties without restriction.