In order to become a certified installer of Lumos Products, you must agree to the following terms and conditions.
ACCEPTANCE OF ORDERS: All orders placed with Lumos by Customer for Products will be subject to acceptance by Lumos at its principal place of business.
SHIPPING; DELIVERY; TITLE: Shipping of the Products will be from Lumos’ warehouse or such other location designated by Lumos (“Lumos’ Location”), and all expenses related to shipping will be paid by Customer to Lumos prior to shipment unless other arrangements have been made as referenced on the invoice. Customer will be responsible for all shipping charges. Delivery will be deemed complete, and risk of loss for damage to the Products will pass to Customer upon delivery of the Products to the carrier at Lumos’ Location. The carrier selected by Lumos will be deemed approved by Customer unless Customer notifies Lumos in advance of shipment. In no event will Lumos be liable for any delay in delivery, or assume any liability in connection with shipment, nor will the carrier be considered an agent of Lumos. The scheduled delivery date will be that date acknowledged by Lumos. Title to the Products will transfer to the Customer at the time that the Products are delivered to carrier at the Lumos’ Location. Lumos will not be liable for any loss or damage to the Products during shipment, and all claims for loss or damage during shipment will be filed by Customer with the carrier.
PRICES AND TAXES: Customer will pay Lumos the amount identified on each invoice for each Product purchased (the “Purchase Price”). Customer will also pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on the transactions contemplated by this Agreement, excluding taxes based upon Lumos’ net income.
PAYMENT: All amounts due and payable for sales of the Products (including any shipping and other expenses) will be due and payable prior to the time that any Product(s) is shipped. Notwithstanding the immediately preceding sentence, Lumos may in its sole and absolute discretion extend credit to Customer so that a Product may be shipped to Customer prior to Customer’s full payment for a Product(s) ordered.
WARRANTIES: To the extent authorized, Lumos will transfer to Customer the manufacturer’s warranty upon transfer of title. Other than warranties provided by the Products manufacturer, Customer acknowledges that, with respect to the Products sold to Customer, Lumos does not make any expressed or implied warranties and the Products are provided “AS IS”. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, LUMOS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ON PRODUCTS FURNISHED HEREUNDER, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
INSPECTION AND ACCEPTANCE: Acceptance must be completed within seven (7) calendar days of delivery of Products to Customer. During the discharge or opening inspection of the Products, if the Products are determined to be in an irregular condition according to their appearance, then Customer will notify Lumos before the Products are discharged from the container. In addition, in the event that Customer has secured insurance for the Products, then Customer will notify the insurance company immediately of any such damage. Customer will take pictures of the Products depicting the irregularity of the particular Product(s), the container number, Product order number, bill of lading number, and Product lot number. Customer will cease discharging the Product(s) until Lumos notifies Customer in writing that Product discharge can continue. If Lumos does not receive written notice of non-acceptance within seven (7) calendar days of delivery of Products to Customer, the Products will be deemed accepted. The parties acknowledge and agree that Lumos will not be liable for any discrepancy of the Products shipped due to causes for which the insurance company (as applicable), the carrier, or any other transportation organization is liable.
CANCELLATION AND RESCHEDULE CHARGES: 7.1 All orders are firm and non-cancelable by Customer. Customer is responsible for the full price of Products as ordered. Termination by mutual agreement is subject to the following conditions: (a) Customer will pay for all Products which are completely manufactured and allocable to Customer at the time of Lumos receipt of notice of termination; and (b) Customer will pay all costs which have been incurred by Lumos with regard to Products which have not been completely manufactured at the time of Lumos receipt of notice of termination, plus a pro rata portion of normal profit on the order using Lumos’ accounting practices. Lumos reserves the right to cancel or delay shipment of any orders placed by Customer and accepted by Lumos, if Customer: (x) fails to make any payments as provided herein, (y) fails to meet reasonable credit or financial requirements established by Lumos, or (z) otherwise fails to comply with the terms and conditions set forth herein. Product returns are subject to Lumos approval and applicable charges at Lumos’ sole and absolute discretion. 7.2 Recognizing that Lumos’ damages arising from any cancellation or rescheduling of any order will be difficult to estimate, the parties agree that the following charges are reasonable and are intended as liquidated damages and not as a penalty: (a) orders cancelled less then ten (10) calendar days prior to scheduled delivery day, at Lumos’ option, may be subject to restocking charges of 10 percent (10%) of invoiced value; (b) an order rescheduled for more than thirty (30) calendar days or rescheduled more than once may, at Lumos’ option, be cancelled and therefore be subject to cancellation/restocking charges of 10 percent (10%) of invoiced value. Any order may be rescheduled for less than ten (10) calendar days from the originally scheduled delivery date once without incurring rescheduling charges.
INSURANCE: Customer will have the right to purchase insurance for the Products in its sole and absolute discretion. Lumos will not be responsible for securing or paying for any insurance coverage.
INDEMNITY: Customer hereby agrees to indemnify and hold Lumos harmless from any claims, expenses (including reasonable attorneys’ fees), or losses arising out of or resulting from the use of the Products.
LIMITATION OF LIABILITY: IN NO EVENT WILL LUMOS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OF ANY NATURE (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR PERSONAL PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR FOR BREACH OF WARRANTY OR OTHERWISE, EVEN IF THE OTHER PARTY) HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL LUMOS’ TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO LUMOS FOR PURCHASE OF THE PRODUCTS.
FORCE MAJEURE: If the performance of this Agreement, or any obligation hereunder except the making of payments hereunder is prevented, restricted, or interfered with by reason of: fire, flood, earthquake, explosion, or other casualty or accident; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies or power, war or other violence; any order proclamation, regulation, ordinance, demand, or requirement of any governmental agency; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, will be excused from such performance to the extent of such prevention, restriction, or interference; provided that the party so affected will take all reasonable steps to avoid or remove such cause of nonperformance and will resume performance hereunder with dispatch whenever such causes are removed.
SEVERABILITY: If any provision of this Agreement will be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
ASSIGNMENT; WAIVER: The duties and obligations of each of Customer herein may not be assigned or delegated without the written consent of Lumos. No waiver will be implied from conduct or failure to enforce rights, and no waiver will be effective unless in writing signed on behalf of the party against whom the waiver is asserted.
ATTORNEYS’ FEES: In any action to enforce this Agreement, the prevailing party will be entitled to recover all court costs and expenses and reasonable attorneys’ fees, in addition to any other relief to which it may be entitled.
NOTICES: All notices, and other communications hereunder will be in writing, and will be addressed to Lumos or to Customer and will be considered given when (i) delivered personally; (ii) sent by confirmed facsimile; (iii) sent by commercial overnight courier with written verification receipt; or (iv) three (3) calendar days after having been sent, postage prepaid, by first class or certified mail.
GOVERNING LAW: This Agreement will be construed in accordance with, and disputes will be governed by, the laws of the State of Colorado, excluding its conflict of law rules.
ARBITRATION: In the event a dispute arises between the parties arising out of or in connection with this Agreement, it will be settled by binding arbitration held in the City of Boulder, State of Colorado under the commercial rules then in effect for the American Arbitration Association. Judgment upon any award resulting from such arbitration is final and binding on the parties, and may be entered and enforced in a court having proper jurisdiction. The award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses.
EXPORT CONTROLS: Customer will be responsible for compliance with all applicable import and/or export regulations. In addition, Customer agrees to comply with all applicable local country import and/or export laws or regulations in the country(ies) of procurement, production and/or end destination of the Products. Customer will indemnify and will hold Lumos harmless from and against any claim, loss or liability arising out of any breach of the foregoing covenants contained in this Section.
ENTIRE AGREEMENT; MODIFICATION: This Agreement and any attachments incorporated or referred herein constitute the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to this subject matter. Any provisions in any acknowledgement form or other document prepared by Customer which vary from or are additional to the provisions of this Agreement will not bind Lumos and are expressly rejected. This Agreement may not be varied, modified, altered, or amended except in writing signed by the parties.
MARKETING: Customer agrees to allow Lumos to use photographs, Customer names, brand names and other relevant information in its marketing materials for the purpose of promoting the Lumos brand name.