Luminar Semiconductor, Inc.
General Terms and Conditions for the Sale of Goods
- Applicability.
(a) These terms and conditions of sale (these “Terms“) are the only terms which govern the sale of the goods (“Goods“) by Luminar Semiconductor, Inc. and its affiliates BFE Acquisition Sub II, LLC, d/b/a Black Forest Engineering, Freedom Photonics, LLC, and OptoGration Inc. (“Seller“) to the buyer named on the reverse side of these Terms (“Buyer“). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
(b) The accompanying quotation and order confirmation (the “Sales Confirmation“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
- Delivery of Goods.
(a) The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit. Any shipping and delivery dates provided by Seller are estimates only.
(b) Unless otherwise agreed in writing by the parties, (i) Goods delivery terms will be Ex Works (Incoterms 2020) Seller’s facility (the “Delivery Point“), (ii) Goods risk of loss shall transfer to Buyer upon surrender of Goods to the carrier and the Delivery Point, (iii) Buyer shall be responsible for all costs of packaging, handling, freight, shipping, insurance, customs clearance, duties, and other fees for Goods transportation, export, and import to the Buyer. If Buyer does not provide written shipping instructions, Seller will select the carrier and method of shipment, with transportation charges, customs clearance fees, and insurance costs to be paid by Buyer. All ordered products will be shipped in standard commercial packaging unless otherwise requested by Buyer and agreed to by Seller, or deemed necessary by Seller. Buyer shall bear the cost of all non-standard commercial packaging. Buyer must notify Seller within twenty-four (24) hours of its receipt of the Goods if it believes that the Goods were damaged at the time of delivery. Buyer’s sole remedy for delivery of damaged Goods shall be replacement of the Goods.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
- Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Florida Uniform Commercial Code.
- Buyer’s Acts or Omissions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within three (3) days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall replace such Nonconforming Goods with conforming Goods once Seller confirms goods are non-conforming. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to the Delivery Point. Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, inspect goods for non-conformance where applicable, if deemed non-conforming by Seller, ship to Buyer, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
- Price.
(a) Buyer shall purchase the Goods from Seller at the price[s] (the “Price[s]“) set forth in the Sales Confirmation.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.
- Payment Terms.
(a) Unless otherwise stated in the Sales Confirmation, and subject to credit approval by Seller, Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer, check, or Automated Clearing House payment, and in US dollars.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods and stop Goods in transit if Buyer fails to pay any amounts when due hereunder and such failure continues for three (3) days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
- Limited Warranty.
(a) Seller warrants to Buyer that for a period of 1 year from the initial date of shipment of the Goods (“Warranty Period“), that such Goods will be free from material defects in material and workmanship. The foregoing warranty shall only apply to Seller’s standard Goods and shall not apply to any prototypes or other non-standard Goods.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(c) Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 8(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(d) The Seller shall not be liable for a breach of the warranty set forth in Section 8(a): (i) Buyer gives written notice of the defective Goods, reasonably described, to Seller within 15 days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 8(a) to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Buyer’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(e) The Seller shall not be liable for a breach of the warranty set forth in Section 8(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; (iii) Buyer uses the Goods outside of normal or reasonable operation conditions, or (iv) Buyer alters or repairs such Goods without the prior written consent of Seller.
(f) Subject to Section 8(d) and Section 8(e) above, with respect to any such Goods during the Warranty Period, Seller shall repair or replace such Goods (or the defective part).
(g) THE REMEDIES SET FORTH IN SECTION 8(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(a).
- Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 9(b) shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
- Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
- Export Controls. Buyer understands that the export and re-export of Seller’s Goods and any related software, technical data, service, technical assistance, or technology are subject to U.S. and foreign export controls and sanctions including but not limited to the International Traffic in Arms Regulations (“ITAR”) (22 CFR 120 et seq.), the Export Administration Regulations (“EAR”) (15 CFR Part 730-774), the regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) (31 CFR Part 500-598), and all other applicable U.S. Government regulations relating to the importation of goods into the United States (including, but not limited to, the regulations administered by U.S. Customs and Border Protection (“CBP”) at 19 CFR 0 et seq. and other import regulations promulgated by other U.S. agencies which may be enforced by CBP) (collectively “Export Controls”). Buyer agrees to comply, and will ensure that its affiliates comply, with all applicable Export Controls, and to obtain all required U.S. and foreign Export Controls licenses and authorizations at Buyer’s expense. Buyer shall indemnify and hold Seller harmless for any fines and other costs incurred by Seller for any failure of Buyer or its affiliates to comply with the Export Controls.
- Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
- Change and Cancellation.
(a) Buyer may not cancel or change this Agreement or any order of Goods, adjust the type, volume, delivery terms or price, suspend or reschedule any performance or deliveries by Seller or price for any reason, without Seller’s written consent, which consent may be withheld or conditioned in Seller’s sole and absolute discretion. Any agreed upon changes shall be affected by a written change order.
(b) Any request by Buyer for changes to the Goods shall be subject to the Seller’s written consent and shall entitle Seller to modify the price of the Goods and any other terms of the Agreement affected by such change, including without limitation delivery dates, transportation terms and packaging requirements. Buyer shall pay any additional costs incurred by Seller, and any price increases, determined reasonable by Seller in its sole discretion, in connection with any change requested by Buyer, interruption of production caused directly or indirectly by the Buyer or other act, omission, breach or default of Buyer.
(c) In the event of any cancellation or termination of any order for Goods for any reason, Buyer, in addition to an not to the exclusion of Seller’s other remedies at law, equity, or under this Agreement, shall pay to Seller on Seller’s demand the following amounts which shall be invoiced by Seller: (i) the price for all Goods for which Seller has commenced production or has finished production at the time of cancellation or termination, (ii) for Seller’s work-in-process and raw materials purchased by Seller in furnishing the Goods, in the amount equal to 120% of Seller’s actual full cost including burden and overhead costs as determined by Seller in according with Seller’s standard accounting practices, plus a charge for any packing and storage, (iii) Seller’s actual costs of settling all claims with subcontractors and suppliers utilized in connection with the Agreement, (iv) Seller’s actual cost to store the items to be purchased and, if necessary, relocate production to an alternate source, (v) any unamortized tooling costs, development/design costs engineering costs, start-up costs, program capital costs and supplies that are unique to the Goods, (vi) Seller’s expected profit from the performance of the Agreement, and (vii) Seller’s incidental and consequential damages resulting from the termination or breach by the Buyer, including but not limited to, any costs for advanced purchasing of essential items and technical support, attorneys’ fees and other professional fees incurred by Seller as a result of the termination or breach.
(d) Upon cancellation or termination of any order for Goods, all work on the order shall be stopped as promptly as reasonably possible by Seller.
- Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
- Intellectual Property. Any Intellectual Property developed, owned, or licensed by Seller prior to or during the performance of this Agreement shall remain the exclusive property of Seller and its licensors, as the case may be. Seller shall own all rights title, and interest in, and to, the Goods technology and design. Nothing in this Agreement shall be deemed to grant Buyer any license or any other right in such Intellectual Property. The term “Intellectual Property” shall include without limitation all of the following: (i) inventions, discoveries, patents, patent applications and all related continuations, divisional, reissue, utility model, design patents, applications and registrations thereof, (ii) works, copyrights, registrations and application for registration thereof, (iii) computer software programs, data and documentation, (iv) trade secrets, confidential information, know-how, techniques, designs, prototypes, enhancements, improvements, work-in-progress, research and development information, and (v) all other proprietary rights relating to the foregoing. Should third-party Intellectual Property rights be violated by Seller’s Goods based on technical drawings or other data from Buyer, then Buyer shall defense, indemnify, and hold harmless Seller and its Affiliates for all third-Party Intellectual Property infringement claims.
- No Reverse Engineering. Recipient shall not modify, de-compile, disassemble, reverse engineer, create other works from, or use any other process to gain access to the underlying design information or source code of any object or executable code, encrypted or other obfuscated information, prototype, sample or tangible object that may be disclosed hereunder.
- Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a)
acts of God; (b) flood, fire, earthquake, epidemics, explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 17, either party may thereafter terminate this Agreement upon ten (10) days’ written notice.
- Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
- Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Florida without giving effect to principles of conflicts of law. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
- Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Florida. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding, and waives all objections and any argument that such forum is an inconvenient or otherwise inappropriate forum.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following Sections: 7, 8, 9, 10, 11, 13, 15, 16, 17, 21, 22, and 23.
27. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
