Moxtek, Inc. Optics Products Limited Warranty

Moxtek, Inc. (“Moxtek”) extends the following limited warranty to each of its Buyers (each a “Buyer”) (i.e., the persons purchasing Product from Moxtek).  For purposes of this limited warranty, the term “Product” means Moxtek’s optics components (polarizers, polarizing beam splitters, etc.).

Moxtek warrants that the Product, at the time of shipment to the Buyer, will conform to the written Product specifications provided to Buyer. The parties acknowledge and agree that no other affirmation of fact, promise, description, sample or model of or about the Product is a part of the basis of the bargain between them.

The Buyer’s remedy under this warranty and the contract for the sale of Product is expressly and exclusively limited to, per Moxtek’s sole discretion, repairing or replacing defective or nonconforming parts or components of the Product, and covers both parts and labor. Moxtek may, alternatively, in its sole discretion refund the price paid by Buyer for the defective or non-conforming Product.  Repair or replacement will take place only at Moxtek’s principal place of business in Orem, Utah.  If the Product (or any part or component thereof) has been disassembled, tampered with, or modified by non-Moxtek personnel in any way, or has been lost, damaged, destroyed, or subjected to any abuse or misuse (whether or not intentional) during or following delivery, no warranty coverage will apply.  Moxtek assumes no responsibility for products, parts, components, or labor not provided by Moxtek, and has the right to make the final good faith determination concerning the existence and cause of any defect or nonconformity.

To obtain warranty service, Buyer must first contact Moxtek to receive a return material authorization number (RMA), and then within 30 days of receipt of an RMA, must ship the Product, pre-paid by Buyer to Moxtek in Orem, Utah.  Buyer will be solely responsible for risk of loss in connection with the return.  A brief statement from the Buyer must accompany the Product outlining the alleged nonconformity and stating the Buyer’s purchase order number and a name and telephone number of an appropriate Buyer representative. The RMA number must be marked prominently on the outside of the shipping box. Moxtek will use commercially reasonable efforts to replace or repair and return the Product within a reasonable time period, and will keep the Buyer representative informed regarding the progress of repair.

THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.  Moxtek disclaims all other warranties of every kind and nature, express and implied, including without limitation any implied warranties of title, non-infringement, interoperability, merchantability, fitness for a particular purpose, OR That may arise from course of dealing or usage of trade.

In the event the above exclusive remedy is unenforceable or otherwise does not apply, the parties agree, as an essential part of the bargain underlying the sale of the Product, that the following exclusion and limitation of damages will apply to any claim against Moxtek arising out of or related to this warranty, the sale or use of the Product (or any part, component and labor associated therewith), or breach of any agreement between Buyer and Moxtek for the purchase and sale of the Product:

Moxtek WILL not be liable for any INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY damages; and further, Moxtek’s liability, if any, hereunder is limited to the actual cost paid to Moxtek by Buyer for the CORRESPONDING Product.

This exclusion and limitation of damages applies regardless of the theory of liability (e.g., contract, warranty, tort, etc.).  Buyer acknowledges it bargained for this allocation of risk and recognizes that absent the foregoing, the price of the product would be substantially greater.

No claim with respect to the Product or any agreement to purchase or sell the Product may be made by Buyer against Moxtek except under this Limited Warranty and as expressly stated herein.  All claims for breach of warranty or the contract between the parties relating to the Product must be commenced within one year after the breach occurs