Terms & Conditions
Luna Innovations Incorporated
Terms & Conditions of Sale
These Terms and Conditions of Sale (“Terms”) govern the sale of Products and support by Luna Innovations Incorporated (“Luna”).
(a) “Product(s)” means any products described in a Luna Sales Quotation attached hereto and made a part hereof, or otherwise sold to Customer under these Terms. “Custom Products” means Products manufactured or configured to meet Customer requirements.
(b) “User Documentation” means the documentation normally made available by Luna to purchasers of Product, in printed or electronic form, relating to the use of the Product.
(c) “Software” means software that is provided with or loaded, incorporated or embedded in hardware furnished to Customer hereunder, and any derivatives of such software.
(d) “Specifications” means specific technical information about Products which is published by Luna in effect on the date Luna ships Customer’s order.
(e) “Support” means any standard service such as hardware maintenance, calibration and repair, Software updates and maintenance, or education and training, described in a Luna Sales Quotation attached hereto and made a part hereof, or otherwise sold to Customer under these Terms. “Custom Suppo rt” means Support adapted to meet Customer requirements.
2. Shipment and Packaging
(a) Luna shall select the method of shipment of the Product. The cost of such shipment shall be Luna’s then current area destination charge, and the cost of such shipment shall be added to the purchase price set forth in the Sales Quotation. If Customer shall desire a different mode of shipment, Customer shall advise Luna thereof, and Customer shall pay Luna any incremental costs associated with such different mode of shipment.
(b) The Product shall be packaged in accordance with Luna’s then current packaging specifications for the Product for the method of shipment selected by Luna, and the cost of such packaging shall be included in the purchase price of Sales Quotation. If Customer desires or requires (including to accommodate a different mode of shipment) different or special packaging, Customer shall advise Luna thereof, shall assume all liability therefor, and shall pay Luna any incremental costs associated with such different or special packaging.
(c) The Product shall be delivered F.O.B. Luna’s dock. Title to any goods to be delivered under these Terms and risk of loss or damage to such goods will pass to Customer upon delivery of the goods to the carrier.
3. Purchase Price, Taxes and Payment Terms
(a) The purchase price for the Product shall be as set forth in the Sales Quotation. The purchase price, together with all applicable shipping charges, packaging charges, other special charges and taxes, including any and all penalties, but less any credits or deposits, shall be payable to Luna within 30 days of the invoice date. Customer shall pay a late payment charge of 1.5 percent per month, or the maximum rate permitted by applicable law, whichever is less, on any unpaid amount for each calendar month or fraction thereof that any payments are in arrears to Luna.
(b) Prices quoted do not include any transportation, insurance, federal, state, local, value-added, sales, use, excise, property or similar taxes or duties now in force or hereafter enacted. Customer shall pay all taxes, fees or charges of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between Customer and Luna, in addition to the prices quoted or invoiced. If Luna is required to collect the foregoing, such amounts will appear as separate items on Luna’s invoice and paid by Customer unless Customer provides Luna with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer agrees to provide Luna with a valid resale certificate for the Products purchased for resales.
(c) Payment terms are subject to Luna credit approval. Luna may change credit or payment terms at any time should Customer’s financial condition or previous payment record so warrant.
(d) Customer shall account for any rebates, credits or other applicable
discounts received from Luna in accordance with all applicable federal and
state laws and regulations.
In the event that Luna supplies product samples or other materials to the Receiving Party hereunder (“Samples”), the Receiving Party agrees that it will use the Samples solely for performance evaluation, and the Receiving Party will not provide the Samples or any portion thereof to any other person or entity without the express prior written consent of the Disclosing Party. The Receiving Party agrees that it will not, and will not cause any third party to, reverse engineer or disassemble the Samples, including analyzing the Samples by physical, chemical or biochemical means. The Receiving Party expressly agrees that its use of Samples shall be in compliance with all applicable laws, rules, and regulations. Any Samples delivered pursuant to this Agreement is understood to be experimental in nature and may have hazardous properties. THE PROVIDER OF THE SAMPLES MAKES NO REPRESENTATIONS AND EXTENDS NO
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE USE OF THE SAMPLES WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHTS. The Receiving Party assumes all liability for damages that may arise from its use, storage or disposal of the Samples. In no event shall the provider of Samples be liable to the Receiving Party for any use of Samples.
When Recipient’s evaluations are complete, Recipient shall provide a summary of the results of the evaluations to Provider on a non-confidential basis.
(a) These Terms may be terminated or cancelled by Luna with respect to any Products or Support supplied or to be supplied hereunder if:
- Customer fails to pay Luna the purchase price;
- Customer is in default of any other provision of these Terms and such default has not been cured within thirty (30) days after written notice thereof is given by Luna; or
- Customer becomes insolvent or seeks protections, voluntarily or involuntarily, under any bankruptcy laws.
(b) In the event of any termination/cancellation of these Terms, Luna may:
- Declare all amounts owed to Luna to be immediately due and payable;
- Enter Customer’s premises and repossess the Product and all other items supplied by Luna; and
- Cease performance of all its obligations hereunder without liability to Customer.
(c) The foregoing rights and remedies of Luna shall be cumulative and in addition to all other rights and remedies available to Luna in law and in equity.
(d) Prior to the date of shipment, Customer may cancel its order, subject to a cancellation fee, which will include but not be limited to expenses already incurred for labor and material costs, overhead, commitments made by Luna, and a reasonable profit. In the event of cancellation, Customer will have no rights in partially completed goods.
(e) Provisions which by their nature extend beyond the termination of any sale or license of Products or Support will remain in effect until fulfilled.
7. Force Majeure
Luna shall not be liable for any failure to perform under these Terms if the failure arises from causes beyond the control and without the fault or negligence of Luna. Examples of these causes are (a) acts of God or of the public enemy, (b) acts of the Government in either its sovereign or contractual capacity, (c) fires, (d) floods, (e) epidemics, (f) quarantine restrictions, (g) strikes, (h) freight embargoes and (i) unusually severe weather. If the delay is caused by delay of a subcontractor of Luna and if such delay arises out of causes beyond the reasonable control of both, and if such delay is without the fault or negligence of either, Luna shall not be liable for excess costs.
8. Limitation of Liability
(a) IN NO EVENT SHALL LUNA, ITS SUBCONTRACTORS OR SUPPLIERS BE LIABLE TO CUSTOMER FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) ARISING OUT OF OR RELATED TO THESE TERMS OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF LUNA HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THIS EXCLUSION IS INDEPENDENT OF ANY REMEDY SET FORTH IN THESE TERMS.
(b) To the extent that limitation of liability is permitted by law, Luna’s liability to Customer is limited to refund of the Product purchase price.
(c) The remedies in these Terms are Customer’s sole and exclusive remedies.
Luna retains ownership of all right, title and interest in all intellectual property rights pertaining to Software provided hereunder. Customer that it has been hereby granted a personal, nonexclusive, non-transferable license without the right to grant sublicenses to run the Software in machine readable form only on the hardware in or with which it is furnished hereunder, for the exclusive purpose of processing Customer’s internal data and not for the purposes of providing services to third parties, and solely for use in connection with Products sold by Luna hereunder (“Product Use”). Customer will strictly adhere to the Product Use of the Software and will not, in particular, create derivatives of the Software, nor translate, adapt, arrange, or otherwise alter or perform error corrections, nor, disclose, sell, assign, rent, lend, sublicense, or otherwise transfer the Software, or any licenses granted hereunder. Customer also agrees that it will not reverse engineer the Software (except to the extent that such restrictions are prohibited by applicable law). Nothing in these Terms shall be interpreted as conveying or granting a license to Customer of any Licensed Software in source code form.
10. Title and Security Interest
(a) Notwithstanding Paragraph 2(c), Luna shall retain a purchase-money security interest in all Products sold hereunder and the proceeds thereof, in the amount of the full purchase price. In the event of default by Customer in any of its obligations to Luna, Luna will have the right to repossess the goods sold hereunder without liability to Customer. These security interests will be satisfied by payment in full.
(b) Customer hereby authorizes Luna, where permitted by applicable law, to file a financing statement without the signature of Customer. At Luna’s request, Customer shall execute such other documents as Luna may request to perfect or enforce Luna’s security interest in the Product. Customer shall not remove the Product from the location specified for shipment without Luna’s prior written consent, so long as Luna retains a security interest in the Product.
11. Export Control
Customer who exports, re-exports, transfers or imports Products, technology or technical data purchased hereunder, assumes responsibility for complying with all applicable U.S. and other laws and regulations, and for obtaining required export and import authorizations. Customer shall comply with the laws and regulations of the United States relating to exports and foreign transactions, including, but not limited to, the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). In particular, Customer shall not disclose any technical data, nor deliver or export any Product manufactured by use of technical data, out of the United States, or to foreign entities within the United States, without proper written authorization from the United States Government. Luna may suspend performance if Customer is suspected to be in violation of applicable laws or regulations.
(a) These Terms shall be effective upon execution thereof by the parties, or as otherwise deemed effective as provided by law, it being understood that LUNA’S ACCEPTANCE OF ANY CUSTOMER PURCHASE ORDER OR IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO THESE TERMS. NO TERMS OR CONDITIONS SET FORTH IN CUSTOMER’S PURCHASE ORDER OR OTHER CORRESPONDENCE ARE ACCEPTED BY LUNA, AND LUNA HEREBY OBJECTS TO ANY SUCH TERMS.
(b) Neither party’s failure to exercise any of its rights under these Terms will be deemed a waiver or forfeiture of those rights.
(c) To the extent that nay provision of these Terms is determined to be illegal or unenforceable, the remainder of these Terms will remain in full force and effect.
(d) The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.
(e) Any cause of action arising out of or related to these Terms must be brought no later than one year after the cause of action has accrued.
(f) These Terms are the sole agreement between the parties relating to the subject matter hereof and supersede all prior understandings, writings, proposals, representations or communications, oral or written, of either party. These Terms may only be amended by an instrument executed by the authorized representatives of both parties.
(g) Any clerical errors made on quotations or order acceptances accompanying this form are subject to correction by Luna.
(h) These Terms shall be interpreted in accordance with the substantive laws of the Commonwealth of Virginia, without regard to conflict-of-law principles.
(i) Neither these Terms nor any rights, duties or obligations of Customer under these Terms may be assigned or transferred by Customer. Any attempt by Customer to assign or transfer these Terms or any of the rights, duties or obligations under these Terms without Luna's prior written consent is void.