Luna Sales - Terms & Conditions
GENERAL TERMS OF SALE
1. Contract
These General Terms of Sale (these “Terms”) are express conditions of sale and, together with (i) the purchase order or proposal into which these Terms are incorporated by reference or attached (the “PO”), (ii) the Specifications (defined below), and (iii) all other documents attached to the PO, collectively constitute the “Contract”, which (a) is the entire and exclusive agreement between Luna Innovations Incorporated or its affiliate named on the PO (as applicable, “Luna”) and the counterparty named on the PO (“Buyer”, and Buyer and Luna each a “Party”) regarding the subject matter hereof, including, without limitation, the purchase and sale of equipment and other goods (“Goods”) and services and other non-Goods items (“Services”, and together with Goods, collectively, “Deliverables”) identified in the Contract, and (b) expressly supersedes all prior or contemporaneous oral or written agreements, understandings or communications relating to the subject matter hereof. In the event of conflict, inconsistency or ambiguity in the Contract, the documents will control in the following order of priority: (1) these Terms, (2) the PO, (3) the Specifications, and (4) other documents attached to the PO. Nothing in any Buyer document referenced or hyperlinked in the PO or in any request for proposal, Buyer form, term sheet or other communication or document, whether delivered prior to, on or after the effective date of the PO (the “PO Date”), will be part of the Contract or of any force or effect. The Contract may be modified or supplemented only pursuant to a writing signed by both Parties (and any purported course of performance, course of dealing or usage of trade will be of no effect). No waiver will be effective unless signed by the waiving Party, regardless of any delay or failure to exercise any right or power or insist upon compliance with any obligations, and any waiver will apply only to the specific right, power or obligation and instance.
2. Contract Price
The total price for the Deliverables is as set forth on the PO (the “Contract Price”). Unless provided otherwise herein, the Contract Price includes Luna’s standard testing, marking, packing and shipping documentation, all taxes that are for Luna’s account under the Incoterm and Luna’s income and payroll taxes. The Contract Price excludes all sales, use, value-added, excise or other similar taxes related to the Contract or the price, sale, delivery, performance, use or ownership of the Deliverables (collectively, “Buyer’s Taxes”), and Buyer is responsible for and shall pay the same. If lawful, Luna may include any Buyer’s Taxes in any invoice and remit collected taxes to the appropriate authority. If, however, Buyer provides a valid tax exemption certificate before Luna generates the applicable invoice, then, if lawful, Luna will not include the applicable Buyer’s Taxes therein.
3. Payment
Buyer shall pay Luna the Contract Price in accordance with the Contract. Unless provided otherwise herein, payment terms are 30 days from the date on Luna’s invoice and the Contract Price will be invoiced as follows: (i) 30% of the Contract Price attributable to Goods, on or after the PO Date, (ii) 70% of the Contract Price attributable to Goods, on a pro-rata basis as shipments are made, and (iii) 100% of the Contract Price attributable to Services, on a pro-rata basis as Services are rendered. Costs incurred by Luna due to Buyer’s preferred payment management platform shall be reimbursed by Buyer upon demand. Buyer shall make all payments hereunder by wire transfer to an account designated by Luna in writing (or by another payment method approved by Luna in writing), without setoff, counterclaim or reduction. If Buyer fails to timely fulfill any of its payment obligations or fails to maintain any applicable parent guaranty or other financial security and does not correct such failure within 7 days after notice, then Luna may, at its option, without limiting its other rights and remedies and without liability: (a) terminate the Contract, (b) treat such failure as a repudiation of the Contract, or (c) pursue and be entitled to any remedies for such Buyer Act or Omission (defined below). In addition, Buyer shall pay Luna interest on all sums due from and after the due date, until paid in full, at the lesser of: (1) an annual rate of 18%, and (2) the maximum annual rate permitted by applicable law.
4. Pre-Delivery Inspection
Buyer may inspect Goods prior to shipment at the manufacturing or storage location; provided, however, such right is conditioned upon (i) Buyer providing reasonable advance notice to enable coordination of the visit, (ii) the Goods being available at the relevant location and Buyer not interfering with any schedules, (iii) if applicable, the relevant third party agreeing to accommodate such visit, (iv) if requested, Buyer entering into a confidentiality agreement with such third party, and (v) Buyer agreeing to comply with all relevant rules, policies and procedures. Upon request, Luna shall provide Buyer the results of standard factory tests as may be available. The pre-shipment inspection of Goods will not affect Luna’s obligations hereunder.
5. Delivery
Any delivery dates specified in the PO are approximate and contingent upon prompt receipt of all necessary information from Buyer. The Incoterm and delivery point for the Goods are as stated in the PO; provided, however, if the PO fails to specify the Incoterm or delivery point, then the delivery terms will be EXW (Luna selected manufacturing or storage location) Incoterms 2020. Title and risk of loss of a Good will pass from Luna to Buyer upon delivery of such Good to the delivery point in accordance with the Incoterm. Upon delivery, Buyer shall immediately inspect the Goods for visible damage, and may reject damaged Goods by providing written notice to Luna within 24 hours after delivery; provided, however, such notice must be accompanied by all documentation and evidence required for a successful claim with the carrier or insurer, otherwise Luna will have no liability for such damage. If a Good is properly rejected within such 24-hour period, Luna shall promptly repair or replace such Good (or portion thereof) to bring it into conformity with the Specifications, which will be the sole and exclusive liability and remedy for rejection. If Buyer does not properly reject a Good within the 24-hour period, such Good will be deemed irrevocably accepted, without prejudice to Buyer’s remedies under Section 8 (for issues other than shipment damage).
6. Services
Unless provided otherwise herein, (i) Services will be billed and paid on a time and materials basis (and no estimate of required Services will be deemed a fixed price), (ii) the price for Services excludes standby, wait time and other delay, which will be separately billed and paid at the applicable Services rates, (iii) the price for Services excludes airfare, hotel, car rentals and other travel and living expenses (including, without limitation, visa related expenses for work outside of the United States), which will be separately billed and paid at cost plus 20%, (iv) travel time will be billed and paid at the applicable Services rates, and (v) Luna’s then standard work week, work hours, Services rates, per diems and minimum billable increments will apply.
7. Excusable Cause
Notwithstanding anything to the contrary in the Contract, or otherwise, Luna will not be in breach or otherwise liable for any failures or delays in performance due to Force Majeure, Change in Law or Buyer Act or Omission (each as defined below, and collectively, “Excusable Cause”), and Luna will be entitled to a time extension equivalent to the duration of the associated delay. “Force Majeure” means any event, condition or circumstance (other than Change in Law or Buyer Act or Omission), regardless of whether foreseeable as of the PO Date, that is beyond the commercially reasonable control of Luna, including, without limitation, acts of god, war, unrest, terrorism, sabotage, acts of civil or military authority, transportation disturbances, disease outbreak, epidemic or pandemic, fire, explosion, accident, flood, earthquake, tornado, hurricane, other natural forces and strike or labor disturbance. Impacts from the coronavirus will constitute Force Majeure notwithstanding the present existence of the pandemic and the foreseeability of impacts therefrom. “Change in Law” means any enactment, adoption, promulgation, issuance, repeal, curtailment, extension or other modification or supplementation of any law, regulation, order, rule, standard, code or permit or any change in the interpretation thereof by any court or competent authority, regardless of whether foreseeable as of the PO Date, that adversely affects Luna’s cost of or schedule for performance, including, without limitation, new or changed tariffs. In the event of a Change in Law, Luna will be entitled to an increase in the Contract Price to the extent of all reasonably documented cost increases arising therefrom, in addition to the time extension above. “Buyer Act or Omission” means any act or omission of Buyer, its customer, site owner or end user, their respective affiliates, the respective lenders, investors, consultants, engineers, contractors or suppliers (of any tier) of the foregoing, their respective affiliates, or the respective shareholders, members, directors, officers, employees, agents or representatives of the foregoing (each, a “Buyer Person”). If Luna or its performance is or is likely to be impacted by any Buyer Act or Omission, then Luna may, at its option, without limiting its other rights and remedies and without liability: (i) suspend performance, (ii) place on standby, demobilize or reallocate resources, (iii) place Goods in storage, (iv) deem shipment to have occurred for purposes of calculating the Warranty Period (defined below), or (v) invoice Buyer based on the original payment milestones and schedules, notwithstanding that achievement thereof has been prevented or delayed. Further, in addition to the time extension above, Buyer shall, upon submission of Luna’s invoices therefor, pay or reimburse Luna for all reasonably documented costs arising from such Buyer Act or Omission, plus a 20% markup on all such costs. Additionally, if Luna’s performance is delayed or prevented for more than 60 consecutive days or 90 cumulative days due to a Buyer Act or Omission, Luna may, at its option, without limiting its other rights and remedies and without liability, terminate the Contract and such termination will be deemed a termination for convenience by Buyer.