Acceptance—By accepting delivery of the Luminex system or components (“System”), including the software provided by Seller (“Software”), and/or fluorescently-dyed microsphere beads provided by Seller (“Beads,” and collectively with the System and Software, the “Products” and individually, a “Product”), you agree to be bound by and accept these terms and conditions and to remit the total charges for the Products (the “Purchase Price”) to Luminex Corporation (the “Seller”). This invoice (or acknowledgement) (this “Contract”) expressly rejects or supersedes any inconsistent prior or contemporaneous terms and conditions regarding the Products delivered in accordance herewith.
Changes—This Contract may not be amended except by written agreement signed by both you and an authorized representative of Seller. Any attempt to amend this document or to submit an order for Products which contains additional or altered terms and conditions without such written agreement will be null and void; provided, however, if your order requires expedited service, applicable overtime charges will be added to the Purchase Price. This Contract may not be cancelled unless expressly approved in writing by Seller. In event of cancellation, you agree to pay cancellation charges (as determined by Seller), including, but not limited to, all costs resulting from your cancellation of this Contract. Seller’s reasonable determination of such costs shall be conclusive and binding on the parties hereto.
Security Interest—You hereby grant to Seller, and Seller hereby reserves, a security interest in the Products and in the proceeds of any sale or lease of the Products to secure your obligation to pay the Purchase Price. You agree to cooperate in all respects in order that Seller may perfect such security interest. Seller shall release the security interest upon payment in full of the Purchase Price.
Delivery, Claims, Delays—All sales are F.O.B. Seller’s shipping point unless otherwise prominently noted. All shipping, handling, insurance and other similar costs will be added to the Purchase Price. Title to Products passes to you upon shipment from Seller’s facility. You are responsible for any loss or damage that occurs during shipping. Seller reserves 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 you of your obligation to accept any remaining deliveries.
You must examine the Products when you receive them. If any Product is damaged or missing, you must notify Seller in writing within five days of receipt of delivery. If you fail to notify Seller within this time period, you will be considered to have irrevocably accepted the delivered Products as conforming.
Products may not be returned for credit except with Seller’s permission, and then only in strict compliance with Seller’s return shipment instructions.
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, your acts or omissions, governmental acts or regulations, acts of war or terrorism, disasters or acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices.
Allocation of Goods—If Seller is unable for any reason to supply the total demands for the Products specified in your 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.
Payment—Terms of sale are net 30 days of date of invoice with payment due in Travis County, Texas, USA, unless other provisions for payment have been approved by Seller in writing. Payments must be made in United States funds, unless otherwise agreed in writing. If Seller reasonably believes that your financial condition compromises your ability to timely remit the Purchase Price in accordance with this Section 6, Seller may delay or postpone the delivery of the Products and condition shipment of the Products on full or partial advance payment of the Purchase Price. In the event you default in the payment of the Purchase Price or otherwise, Seller, at its option, without prejudice to any other lawful remedies, may defer delivery, cancel this Contract, or sell any undelivered Products on hand for your account and apply such proceeds as a credit, without set-off or deduction of any kind, against the Purchase Price.
Taxes and Other Charges—You are responsible for all sales and other taxes, duties and government fees applicable to the sale of the Products in addition to the Purchase Price and you must reimburse Seller for any such taxes, duties or fees paid. Only an exemption certificate or other document acceptable to the authority imposing the tax, duty or fee provided to Seller prior to Seller’s acceptance of the order will obviate this reimbursement obligation.
8. Warranty—THE WARRANTY SET FORTH IN THE IMMEDIATELY FOLLOWING PARAGRAPH IS APPLICABLE ONLY TO PRODUCTS INITIALLY SOLD AND THEREAFTER LOCATED IN NORTH AMERICA AND THE COUNTRIES THAT COMPRISE THE EUROPEAN UNION. SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS SOLD, DISTRIBUTED, LOCATED OR USED OUTSIDE OF NORTH AMERICA AND THE COUNTRIES THAT COMPRISE THE EUROPEAN UNION. PRODUCTS SOLD OUTSIDE OF NORTH AMERICA AND THE COUNTRIES THAT COMPRISE THE EUROPEAN UNION ARE SOLD ONLY ON AN “AS IS, WHERE IS” BASIS. To the extent that the foregoing disclaimers are invalid or unenforceable under the laws of any jurisdiction, the warranty, disclaimer, limitation of liability and other provisions set forth below in this paragraph 8 shall thereupon be effective to the fullest extent permitted by applicable law.
Seller warrants that the Products shall conform in all material respects to the specifications provided to you 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. The foregoing warranty shall not be effective if Seller has determined, in its sole discretion, that you have misused, improperly installed, operated, maintained or repaired the Products in any manner, have failed to use the Products in accordance with industry standards or practices, or have failed to use the Products in accordance with any instructions furnished by Seller. Seller does not warrant that the use or sale of the Products 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. IN ADDITION, SELLER’S WARRANTY SHALL BE VOID AND OF NO FORCE OR EFFECT SHOULD YOU OR ANY THIRD PARTY AT ANY TIME INSTALL ANY SOFTWARE ON THE COMPUTER HARDWARE WHICH COMPRISES PART OF A PRODUCT OR USE ANY SOFTWARE THAT CONTROLS OR INTERACTS WITH SUCH COMPUTER HARDWARE IN ANY WAY, WHICH SOFTWARE HAS NOT BEEN APPROVED IN WRITING BY SELLER SPECIFICALLY FOR SUCH INSTALLATION OR USE. LUMINEX TERMS AND CONDITIONS OF SALE YOUR 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 UPON THE RETURN OF SUCH PRODUCTS AT SELLER’S DIRECTION. SELLER SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ANY ACTION FOR BREACH OF CONTRACT WITH RESPECT TO ALL PRODUCTS SOLD HEREUNDER SHALL BE COMMENCED, AND ANY CLAIMS FOR BREACH OF CONTRACT MUST BE RECEIVED, WITHIN ONE (1) YEAR OF SHIPMENT, 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.
Use of Products—You understand the risks associated with the use of the Products as set forth in the instructions supplied with the Products and expressly assume such risks. The Products shall be used consistent with their labeling. Products labeled “For Research Use Only” (“Research Products”) are intended for laboratory research and evaluation purposes only and are not for diagnostic use or to be used for any commercial applications or purposes. You agree that no rights or licenses under Seller’s patents shall be implied from the sale of the Products to you, except as expressly provided herein, and you do not receive any right under Seller’s patent rights hereunder. You acknowledge and agree that the Systems are sold only for use with Beads authorized by Seller and to obtain the right under Seller’s patents to use the Systems with such Beads, you must purchase the Beads. Likewise, you acknowledge and agree that the Beads are sold and licensed only for use with Systems. You further acknowledge that the Products have not received approval from the U.S. Food and Drug Administration or any other U.S. or foreign 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 furnished to you. Research Products have not been cleared or approved for diagnostic procedures. Products labeled “For In vitro Diagnostic Use” are intended to be used consistent directions for use including all cautions, warnings, limitations and contraindications.
You shall not reverse engineer, decompile, disassemble or modify the Products or create derivative works of the Software. You acknowledge 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 Software is licensed, not sold, to you pursuant to a separate end user license agreement ("EULA") solely for use under the terms hereof and of the EULA.
You hereby grant to Seller a nonexclusive, worldwide, unrestricted, royalty-free, fully paid-up license, with the right to grant and authorize sublicenses, under any and all patent rights in inventions comprising modifications, extensions or enhancements made by you 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, offer 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 you consisting of methods of sample preparation, methods of conjugating beads to analytes, the composition of matter of the specific chemistries of the assays developed by you, and methods of performing the assays (i.e., the protocol for the assay).
Buyer’s Responsibilities, Release and Indemnity—You agree to use all Products in accordance with Paragraph 9, “Use of Products,” and any instructions supplied with the Products. You agree 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. You agree 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 by reason of your failure to perform the obligations contained herein. You shall notify Seller in writing within fifteen (15) days of your receipt of knowledge of any accident or incident involving the Products which results in personal injury or damage to property, and you 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 you or made available to you 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.
Technical Assistance—At your request and expense, Seller may, at Seller’s discretion, furnish technical assistance (directly or through third parties) with respect to the Products at Seller’s then-current rates. 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 AGENTS OR PERSONNEL.
Errors and Omissions—Seller reserves the right to correct clerical errors and omissions.
Miscellaneous—The terms and conditions of this Contract, and any document referred to on the face hereof, constitute the entire agreement between you and Seller. Seller’s failure to strictly enforce any term or condition of this Contract 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 Contract are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. If any provision of this Contract 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 part of this Contract and shall not affect its interpretation. This Contract 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 and permitted successors and assigns.
Governing Law—THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO CONFLICTS OF LAWS RULES. UNLESS PROHIBITED BY APPLICABLE LAW, YOU HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION AND VENUE OF THE COURTS OF TRAVIS COUNTY, TEXAS, USA, FOR ANY AND ALL DISPUTES ARISING FROM THIS CONTRACT OR THE TRANSACTION CONTEMPLATED HEREBY.