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TERMS & CONDITIONS OF SALE

Luminex Terms & Conditions of Sale Policy

 

  1. Acceptance—ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND
    CONDITIONS CONTAINED HEREIN, AND UPON BUYER’S ASSENT THERETO. NO VARIATION OF THESE TERMS AND CONDITIONS SHALL BE BINDING UPON SELLER UNLESS AGREED TO IN WRITING AND SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF SELLER. This invoice (or acknowledgement), and not any purchase order or other document of Buyer, shall be deemed an offer or counter-offer and is a rejection of any inconsistent prior terms and conditions. Buyer, by accepting (i) the Luminex instrument (“Instrument”), comprised of Instrument and software provided by Seller (“Software”), (ii) assays provided by Seller for use only with an Instrument, (iii) fluorescently-dyed microsphere beads provided by Seller only for use with a Luminex Instrument (“Beads”), or sheath fluid provided by Seller for use only with an Instrument (each of (i), (ii), (iii), and (iv) and each portion thereof, collectively and individually, “Products”) or services provided by Seller hereunder (“Services”), shall be deemed to have assented to the terms and conditions set forth on this or other document hereafter sent by Seller, notwithstanding any terms contained in any prior or later communications from Buyer and whether or not Seller shall specifically or expressly object to any such terms. Seller’s failure to object to any provisions of any subsequent document, communication, or act of Buyer shall not be deemed a waiver of any of the terms hereof.
     
  2. Changes—Orders arising hereunder may be changed or amended only by written agreement signed by both
    Buyer and Seller, setting forth the particular changes to be made and the effect, if any, of such changes on the
    price and time of delivery, except that when Buyer requires expedited service involving overtime, overtime
    charges will be added at Seller’s sole discretion to the price specified on the face hereof or in an attached
    schedule. It is hereby understood and agreed that any purchase order, memorandum, or other instrument
    issued by Buyer in connection with this transaction is for Buyer’s internal use only and its terms shall be of no
    force and effect with respect to the transaction covered by this contract. Buyer may not cancel this order
    unless such cancellation is expressly agreed to in writing by Seller. In such event, Seller will advise Buyer of
    the total charge for such cancellation, and Buyer agrees to pay such charges, including, but not limited to,
    storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-refundable
    materials, cancellation costs imposed on Seller by its suppliers, and any other cost resulting from cancellation
    of this order by Buyer which is permitted by Seller. Certification of such costs by Seller’s certified public
    accountants shall be conclusive on the parties hereto.
     
  3. Security Interest—Buyer hereby grants and Seller reserves a security interest in the Products and in the proceeds of any sale or lease thereof for the amount of the purchase price of the Products. Upon Seller’s request, Buyer shall sign any documentation necessary to perfect such security interest. Payment in full of the purchase price shall release the security interest.
     
  4. Delivery, Claims, Delays—All sales are F.O.B. Seller’s shipping point for shipments made in the United States and FCA Seller’s Loading Dock (INCO 2000) for all other shipments, unless otherwise agreed in writing by the parties. Buyer shall be responsible for shipping, handling, insurance, and other similar costs. Delivery of the goods to the carrier at Seller’s shipping point shall constitute delivery to Buyer and Buyer shall bear all risk of loss or damage in transit. Seller reserves the right to determine the exact method of shipment and the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of Buyer’s obligations to accept remaining deliveries.
    Immediately upon Buyer’s receipt of any goods shipped hereunder, Buyer shall inspect the same and shall
    notify Seller in writing of any claims for shortages, defects, or damages and shall hold the goods for Seller’s
    written instructions concerning disposition. If Buyer shall fail to so notify Seller within five days after the goods
    have been received by Buyer, such goods shall conclusively be deemed to conform to the terms and conditions
    hereof and to have been irrevocably accepted by the Buyer.

    Seller shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture,
    deliver, or otherwise perform hereunder due to any cause beyond Seller’s reasonable control, including, without
    limitation, unsuccessful reactions, acts of Buyer, embargo or other governmental act, regulation or request
    affecting the conduct of Seller’s business, fire, explosion, recall, accident, theft, vandalism, riot, acts of war,
    strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or
    inability to obtain necessary labor, fuel, materials, supplies or power at current prices.
     

  5. Allocation of Products—If Seller is unable for any reason to supply the total demands for Products specified in Buyer’s order, Seller may allocate its available supply among any or all buyers on such basis as Seller may deem fair and practical, without liability for any failure of performance which may result therefrom.
     
  6. Payment—Terms of sale are net 30 days of date of invoice with payment due in Travis County, Texas,
    unless otherwise stated by Seller, or unless other provisions for payment have been made with and approved
    by Seller. Payments are to be made in United States funds, unless otherwise stipulated by Seller, or unless
    other provisions for payment currency have been made with and approved by Seller. If the financial condition
    of Buyer results in the insecurity of Seller, in its sole and absolute discretion, as to the ultimate collectability of
    the purchase price, Seller may, without notice to Buyer, delay or postpone the delivery of the Products or
    Services; and Seller, at its option, is authorized to change the terms of payment to payment in full or in part in
    advance of shipment of the entire undelivered balance of the Products or Services. In the event of default by
    Buyer in the payment of the purchase price or otherwise, of this or any other order, Seller, at its option, without
    prejudice to any other of Seller’s lawful remedies, may defer delivery, cancel this Contract, or sell any
    undelivered Products on hand for the account of Buyer and apply such proceeds as a credit, without set-off or
    deduction of any kind, against the contract purchase price, and Buyer agrees to pay the balance then due to
    Seller on demand. Buyer agrees to pay all costs, including, but not limited to, reasonable attorney and
    accounting fees and other expenses of collection resulting from any default by Buyer in any of the terms hereof.
     
  7. Taxes and Other Charges—Any use of tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any government authority, on or measured by the transaction between Seller and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, Buyer shall reimburse Seller therefore; or, in lieu of such payment, Buyer shall provide Seller at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
     
  8. Warranties—Seller warrants that the Products shall conform in all material respects to the description of the Products as provided to Buyer by Seller through Seller’s designated product specifications. All Services shall be provided in a professional and workmanlike manner and in accordance with any statement of work provided by Seller. THIS WARRANTY IS EXCLUSIVE AND SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Seller’s warranties made in connection with this sale shall not be effective if Seller has determined, in its sole discretion, that Buyer has misused, improperly installed, operated, maintained, or repaired the Products in any manner, has failed to use the Products in accordance with industry standards or practices, or has failed to use the Products in accordance with instructions, if any, furnished by Seller.
     
    SELLER’S SOLE AND EXCLUSIVE LIABILITY AND BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO PRODUCTS PROVED TO SELLER’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN SELLER’S SOLE DISCRETION, UPON THE RETURN OR DESTRUCTION OF SUCH PRODUCTS IN ACCORDANCE WITH SELLER’S INSTRUCTIONS. SELLER’S SOLE AND EXCLUSIVE LIABILITY AND BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO SERVICES PERFORMED NOT IN CONFORMANCE WITH THE SERVICES WARRANTY SET FORTH ABOVE SHALL BE THE REPERFORMANCE OF ANY SUCH SERVICES. SELLER SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS OR SERVICES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT OR SERVICE INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE. ANY ACTION FOR BREACH OF CONTRACT WITH RESPECT TO ALL PRODUCTS OR SERVICES SOLD HEREUNDER
     
    SHALL BE COMMENCED, AND ANY CLAIMS FOR BREACH OF CONTRACT MUST BE RECEIVED, WITHIN ONE (1) YEAR OF SHIPMENT OR PROVISION, RESPECTIVELY, REGARDLESS OF THEIR NATURE.
     
    THE LIMITATIONS OF WARRANTY AND LIABILITY SET FORTH HEREIN SHALL SURVIVE THE CANCELLATION, COMPLETION, OR OTHER TERMINATION OF THIS CONTRACT FOR ANY REASON.

     
  9. Buyer’s Use of Products—Seller’s Products are intended for laboratory research and evaluation purposes only and are not to be used for any commercial applications or purposes. Buyer agrees that no rights or licenses under Seller’s patents shall be implied from the sale of the Products to Buyer, except as expressly provided herein, and Buyer does not receive any right under Seller’s patent rights hereunder. Buyer acknowledges and agrees that the Instruments are sold only for use with beads or assays authorized by Seller and to obtain the right under Seller’s patents to use the Instrument only with such Beads or assays authorized for use with the instrument, Buyer must purchase the beads. Likewise, Buyer acknowledges and agrees that the Beads are sold and licensed only for use with the Instrument. Unless otherwise indicated on the Product label, Buyer further acknowledges that the Products have not received approval from the federal Food and Drug Administration or other federal, state, or local regulatory agencies and have not been tested by Seller for safety or efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated in Seller’s technical specifications or material data sheets furnished to Buyer. Buyer expressly represents and warrants to Seller that Buyer will properly test and use any Products purchased from Seller in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted.
    BUYER HEREBY GRANTS TO SELLER A NONEXCLUSIVE, WORLDWIDE, UNRESTRICTED, ROYALTYFREE,
    FULLY PAID-UP LICENSE, WITH THE RIGHT TO GRANT AND AUTHORIZE SUBLIENCES, UNDER ANY AND ALL PATENT RIGHTS IN INVENTIONS COMPRISING MODIFICATIONS, EXTENSIONS, OR ENHANCEMENTS MADE BY BUYER TO THE PRODUCTS OR ANY PORTION OF THE PRODUCTS OR TO THE MANUFACTURE OR USE OF THE PRODUCTS OR ANY PORTION OF THE PRODUCTS (“IMPROVEMENT PATENTS”), TO MAKE, HAVE MADE, USE, IMPORT, ORFFER FOR SALE OR SELL ANY AND ALL PRODUCTS OR COMPONENTS; EXPLOIT ANY AND ALL METHODS OR PROCESSES; AND OTHERWISE EXPLOIT IMPROVEMENT PATENTS FOR ALL PURPOSES. NOTWITHSTANDING THE FOREGOING, “IMPROVEMENT PATENTS” SPECIFICALLY EXCLUDES PATENT CLAIMS CONCEIVED AND REDUCED TO PRACTICE BY BUYER CONSITING OF METHODS OF SAMPLE PREPARATION, METHODS OF CONJUGATING BEADS TO ANALYTES, THE COMPOSITION OF MATTER OF THE SPECIFIC CHEMISTRIES OF THE ASSAYS DEVELOPED BY BUYER, AND METHODS OF PERFORMING THE ASSAYS (I.E., THE PROTOCOL FOR THE ASSAY).
    Buyer has the responsibility and hereby expressly assumes the risk to verify the hazards and to conduct any further research necessary to learn the hazards involved in using the Products. Buyer also has the duty to warn Buyer’s customers, employees, agents, assigns, officers, successors, and any auxiliary or third party personnel (such as freight handlers, etc.) of any and all risks involved in using or handling the Products. Buyer agrees to comply with instructions, if any, furnished by Seller relating to the use of the Products and not misuse the Products in any manner. Buyer shall not reverse engineer, decompile, disassemble or modify the Products or create derivative works of the Software. Buyer acknowledges that Seller retains ownership of all patents, copyrights, trademarks, trade secrets and other proprietary rights relating to or residing in the Products or any portion thereof and that the All use of the Products must comply with Standard Use Terms and Conditions that accompany the Product and all Software is licensed, not sold, to Buyer pursuant to a separate end user license agreement (“EULA”) solely for use under the terms hereof and of the EULA.
     
  10. Buyer’s Representations, Release, and Indemnity—Buyer represents and warrants that it shall use all Products ordered herein in accordance with Paragraph 9, “Buyer’s Use of Products,” and that any such use of Products will violate any law, regulation, judicial order, or injunction. Buyer agrees to release, discharge, disclaim, and renounce any and all claims, demands, actions, causes of action, and/or suits in law or equity, now existing or hereafter arising, whether known or unknown, against Seller, its officers, directors, employees, agents, successors, and assigns (collectively the “Released Parties”) with respect to the use of the Products or any deliverables provided with Services. Buyer agrees to indemnify and hold harmless the Released Parties from and against any suits, losses, claims, demands, liabilities, costs, and expenses (including attorney, accounting, expert witness, and consulting fees) that Seller may sustain or incur as a result of any claim against Seller based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law or equity arising out of, directly or indirectly, the use of the Products or deliverables provided with Services, or by reason of Buyer’s failure to perform its obligations contained herein. Buyer shall notify Seller in writing within fifteen (15) days of Buyer’s receipt of knowledge of any accident, or incident involving the Products or deliverables provided with Services which results in personal injury or damage to property, and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident and shall make available to Seller all statements, reports, recordings, and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by Seller.
     
  11. Patent Disclaimer—Seller does not warrant that the use or sale of the Products delivered hereunder will not infringe the claims of any United States or other patents covering the product itself or the use thereof in combination with other products or in the operation of any process.
     
  12. Returns—Goods may not be returned for credit except with Seller’s permission, and then only in strict compliance with Seller’s return shipment instructions.
     
  13. Technical Assistance—At Buyer’s request, Seller may, at Seller’s discretion, furnish technical assistance with respect to the Products for such fees and other consideration agreed to in writing by Buyer and Seller. SELLER MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY SELLER OR SELLER’S PERSONNEL. ANY SUGGESTIONS BY SELLER REGARDING USE, SELECTION, APPLICATION, OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN WRITING BY AN OFFICER OR AUTHORIZED AGENT OF SELLER.
     
  14. Errors and Omissions—Seller reserves the right to correct clerical errors and omission.
     
  15. Miscellaneous—These terms and conditions, and any document referred to on the face hereof, constitute the entire agreement between Seller and Buyer. Seller’s failure to strictly enforce any term or condition of this order or to exercise any right, power, or privilege arising hereunder shall not constitute a waiver of Seller’s right to strictly enforce such terms or conditions or exercise such right, power, or privilege thereafter. All rights and remedies under this order are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. Any waiver or default by Buyer hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions, rights, powers, and privileges shall not be affected or impaired thereby. The paragraph headings herein are for convenience only and form no party of the terms and conditions and shall not affect the interpretation of the terms and conditions. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, corporate representatives, agents, successors, and assigns.
     
  16. Governing Law—THE PARTIES TO THIS AGREEMENT ACKNOWLEDGE THAT THE TRANSACTION THAT IS THE SUBJECT MATTER OF THIS AGREEMENT BEARS A REASONABLE RELATION TO THE STATE OF TEXAS AND AGREE THAT THE LAWS OF THE STATE OF TEXAS WILL GOVERN ALL RIGHTS AND DUTIES HEREUNDER. Unless prohibited by applicable law, Buyer hereby submits itself to the jurisdiction of the courts of Travis County, Texas regarding any and all disputes arising from this transaction, and the Parties hereby designate Travis County, Texas as the place of performance and payment.