Contract. This purchase orders contains the entire agreement between Luminex Corporation (“Buyer”) and the supplier to whom this Purchase Order is delivered (“Seller”). This Purchase Order can be accepted only by Seller’s assent to the exact terms and conditions contained in this Purchase Order, and Buyer rejects and objects to all other terms and conditions (other than additional warranties given by Seller)> Seller’s signature on the front of this Purchase Order, the start of performance of this Purchase Order by Seller, the delivery of the ordered products (the “Products”), or the performance of the ordered services (the “Services”), constitutes the Seller’s assent and agreement to these terms and conditions.
Prices and Taxes; Payment. Prices shown on the front of this Purchase Order are firm and fixed and may not be increased unless Buyer so agrees in writing. Unless otherwise stated, such prices include all applicable federal, state and local taxes, duties, and other governmental charges and fee imposed on the sale, use, production, transportation, or handling of the Products or the performance of the Services. If no packing, shipping, and delivering price is specified, Seller shall charge Buyer the lowest prices charged by Seller to other purchasers of the Products or Services. Seller shall submit separate invoices to Buyer for each shipment on or after the date of shipment. Unless otherwise agreed in writing, payment of each invoice shall be made in U.S. Dollars and shall be due not less than thirty (30) days after Buyer receives the invoice or the Products or Services to which it relates, whichever is later.
Delivery. Products shall be delivered to, and Services shall be performed at, Buyer’s address shown on the front of this Purchase Order by the indicated delivery date. Unless expressly indicated by Buyer on the front of this Purchase Order, title to the Products and risk of loss shall pass to Buyer when the Products are unloaded at such delivery location. Seller may not ship under reservation of any kind. Each shipment must include Seller’s packing list. All invoices, packing lists, shipping papers, and related documentation must include Buyer’s complete Purchase Order number.
Inspection; Acceptance. Buyer shall inspect the Products within a reasonable time after delivery and determine whether to accept the Products. If Seller or its agent installs the Products at Buyer’s facility, Seller (or such agent) shall install and test the Products prior to Buyer’s inspection. Neither receipt of delivery nor payment by Buyer shall constitute acceptance. Nonconforming Products shall be returned at Seller’s expense and Seller shall promptly refund any amounts paid by Buyer for such nonconforming Products. Buyer’s count shall govern except in case of proved error.
Cancellation. Buyer shall have the right to cancel this Purchase Order without any obligation to pay Seller (i) at any time prior to Seller’s shipment of the Products (unless the Products are being manufactured or procured specially for Buyer); (ii) if the Products or Services are not delivered by the delivery date indicated on the front of this Purchase Order or, if no date is specified, within a reasonable time; (iii) if Seller fails to provide Products or Services which conform to the warranties set forth below; (iv) if Buyer believes that Seller, due to Seller’s bankruptcy, insolvency or otherwise, may not be able to perform its obligations under this Purchase Order and Seller does not provide Buyer with adequate assurance of its ability to perform within five (5) business days after being requested by Buyer to do so; (v) for any other good and sufficient reason. Time is of the essence in the delivery of the Products and Services.
Warranties and Buyer’s Remedies. Buyer shall receive the benefits of any warranty made by the manufacturer of the Products as well as any warranty shown on the front of this Purchase Order. In addition, Seller warrants that it has title to the Products free and clear of any liens, claims, or other encumbrances, and that the Products and Services are of good and merchantable quality, in conformity with industry standards, fit and safe for their intended purpose, and free from defects of any kind. Seller further warrants that the Products and Services conform strictly to (i) the terms of the Purchase Order, (ii) any specifications or drawings provided by Buyer and/or any samples provided by Seller and (iii) Seller’s published functional specifications for the Products. Seller further warrants that, except to the extent based on designs provided by Buyer, the design, construction, sale, and use of the Products does not and will not infringe on any U.S. patent, trademark, service mark, trade secret or other proprietary rights of any other person. If any Products or Services are found not to conform to any of these warrants within twelve (12) months after delivery of such Products or completion of performance of such Services, or if any Products do not function properly during that time period for any reason other than as a result of Buyer’s misuse of such Products, then, at Buyer’s option and Seller’s sole cost and expense, Seller shall promptly either repair or correct such nonconforming Products or Services or replace nonconforming Products with conforming Products. Buyer also shall be entitled to pursue any other remedies available to it at law or in equity.
Indemnification. Seller shall protect, indemnify, and hold Buyer harmless from and against all loss, expense, liability, or damage (including judgments, fines, penalties, consultants’ fees, and attorneys fees and costs of defense) resulting from any claim asserted or lawsuit instituted against Buyer by an person, including any lawsuit alleging death, personal or economic injury, infringement of third party intellectual property rights, or damages to any private or public property caused or contributed by Seller’s breach of its obligations to Buyer or of any covenant, agreement, representation, or warranty contained in this Purchase Order, INCLUDING INJURY OR DAMAGES CAUSED IN WHOLE OR IN PART BY NEGLIGENT OR ALLEGED ACTS OF OMISSIONS OF BUYER, but excluding injury or damages resulting solely from Buyer’s gross negligence or wilful misconduct.
Liens. Seller waives and releases all liens, rights of lien, and rights of notice of lien, whether constitutional, statutory or otherwise, now existing or that may arise in the future in any way related to the Products or the Services. In the event any claim is filed to enforce any laborers, materialmen, mechanics or other similar lien arising out of or relating to the Products or Services, Seller shall immediately cause such lien to be released and discharged and if Seller fails to do so, Buyer shall have the right to pay and to be reimbursed by Seller for all sums, including attorneys’ fees and any other costs and expenses, necessary to obtain such release and discharge.
Offset. Buyer may deduct or offset from any amount due or to become due to Seller under this Purchase Order any amounts owed by Seller to Buyer whether or not then due and whether arising under this Purchase Order or otherwise.
Disputes. Any dispute, controversy or claim arising out of or in any way related to this Purchase Order or the Products or the Services shall be resolved by mediation and arbitration held in Austin, Texas in accordance with the commercial mediation and arbitration rules of the American Arbitration Association as then in effect. Any arbitration proceeding will be heard by three (3) arbitrators, one (1) designated by each party within thirty (30) days of submission of the notice of arbitration and the third selected by the party designated arbitrators no more than thirty (30) days later, whose decision shall specify findings of fact and conclusions of law. Judgment on the arbitrators’ award may be entered in any court having appropriate jurisdiction.
Authority of Seller’s Representatives. Buyer shall be entitled to assume that Seller has validly authorized and will be bound by any orders, invoices, and other documents executed by employees or agents of Seller customarily relied upon by Buyer.
Notices. Any notice provided for by this Purchase Order shall be in writing and shall be deemed given when hand-delivered or mailed prepaid, certified or registered U.S. mail, return receipt requested, to the party at the address shown on the front of this Purchase Order or to such other address as may be designated by the receiving party in a notice given in accordance with this section.
Amendment; Assignment; Waiver. Without Buyer’s express written consent, (i) no modification, alteration, addition, or amendment of this Purchase Order shall be binding upon Buyer and (ii) Seller may not assign any of its rights or obligations under this Purchase Order, by operation of law or otherwise. Buyer’s failure to enforce any term or condition or to exercise any of its rights shall not constitute a waiver or relinquishment of any such term, condition, or right and shall not affect Buyer’s right to enforce strict compliance with the terms of this Purchase Order at any time.
Governing Law. This Purchase Order and the rights and obligation of the parties shall be governed by, construed, and enforced in accordance with the laws of the State of Texas, excluding any choice of law rules which would refer the matter to the laws of another jurisdiction. The United Nations Convention on the International Sales of Goods shall not apply to sales made under this Agreement.
Compliance. Seller hereby certifies to Buyer that all Products and Services are in full compliance with all applicable federal, state and local laws, rules, regulations and ordinances, including without limitation the Occupational Safety and Health Act, the Fair Packaging and Labeling Act, the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Employment Opportunity Act, and all rules and regulations of the Equal Employment Opportunity Commission. This certification shall apply to all aspects of Seller’s performance, including without limitation the manufacturing, shipment, marking, branding, labeling, invoicing, advertising, and testing of the Products and Services. Seller also certifies its compliance with Executive Order 11246, as amended, and to the extent required by applicable laws and regulations, Executive Order 11738 requiring a Certificate of Compliance with Environmental Regulations, Executive Order 11625 requiring a Certificate of Compliance with Minority Business Enterprise regulations, the Small Business Act, and the Small Business Investment Act of 1958, as amended, and affirmative action clauses concerning disabled veterans and veterans of the Vietnam era and employment of the handicapped.
Seller, on behalf of itself and its representatives, represents and warrants that they (i) have not and will not offer or give to Buyer or any of its representatives gifts, entertainment, payments, loans or other gratuities in order to or that may influence the award of a contract or obtain favorable treatment under any agreement with Luminex or its representatives and (ii) have not and will not use federal funds to influence or attempt to influence any employee of the United States Federal Government or a member of Congress in connection with this Purchase Order. Seller acknowledges and agrees that Business Conduct Policies (defined below) are applicable to Seller. Seller represents and warrants that its actions and inactions, as the case may be, and those of its representatives shall be in compliance with the Business Conduct Policies. “Business Conduct Policies” shall mean Buyer’s Code of Conduct and those policies, codes, rules, standards, procedures and other governance documents of Buyer applicable to individuals and entities conducting business with or for Buyer that set forth standards of conduct, including when engaging in interactions with certain representatives of governmental agencies or other third parties, each as may be revised by Buyer from time to time. Seller’s failure to comply with or breach of its representations and warranties contained in this section shall be deemed a bread of this Purchase Order for which Buyer shall have the right to terminate for cause.
Notification and Acceptance Of Supplier’s Product Changes. Supplier agrees to notify Buyer in writing ninety (90) days prior to any proposed product changes. Buyer must agree to accept each proposed change prior to delivery of products incorporating such change to buyer.
Limitation of Liability. IN NO EVENT WIILL BUYER BE LIABLE TO SELLER WITH RESPECT TO ITS OBLIGATION UNDER THIS AGREEMENT OR OTHERWISE UNDER ANY THEORY, INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.