(Last updated on 11/10/2011)
ENTIRE AGREEMENT; CONFLICTING TERMS. The Purchase Order contains the complete, final and exclusive agreement between Lucigen Corporation (“Lucigen”) and the party identified as the Vendor (“Vendor”) regarding the goods or services ordered hereunder (“Goods and/or Services”). Except as otherwise explicitly agreed by Lucigen in writing, conflicting, different or additional terms are expressly rejected and acceptance of this offer is expressly limited to the terms stated in the Purchase Order. Any shipment or delivery of Goods (including licenses for software, copyrighted items, etc.) or performance of Services shall constitute acceptance of the terms and conditions of the Purchase Order regardless of any purported substitution or addition of terms and conditions by Vendor. Acceptance by Lucigen of any shipment from Vendor shall not constitute acceptance of any such different or additional terms and conditions.
INDEPENDENT AGREEMENTS. The terms and conditions set forth herein shall not apply in any respect if a separate and complete agreement between Lucigen and Vendor regarding Goods and/or Services is in effect.
QUANTITIES. The specific quantity ordered must be delivered in full and not be changed without Lucigen’s prior written consent. Any different quantity without such consent is subject to Lucigen’s rejection and return at Vendor’s expense.
PRICE. The price for each Good and/or Service shall be the price as shown for such Good and/or Service indicated on each Purchase Order. Any change in price without Lucigen’s prior written consent is expressly rejected. No additional charges of any kind, including charges for boxing, packing, cartage or other extras will be allowed except with Lucigen’s prior written consent.
PAYMENT. Unless otherwise agreed, payment shall be due Net 30 days from the date of delivery plus five (5) days, or from the date of receipt of correct invoice, whichever date is later.
TAXES. Except for state sales and use taxes, the price for the Goods and/or Services includes all taxes, fees and charges that may be imposed with respect to the purchase of the Goods and/or Services.
DELIVERY. Time is of the essence in the performance of each Purchase Order and any delay in delivery shall constitute a material breach. Title shall transfer to Lucigen upon delivery of the Goods to Lucigen. Unless otherwise agreed, shipment of the Goods shall be FOB destination with Vendor bearing the risk of loss and cost of delivery.
INVOICING. All packages, packing slips and invoices must be plainly marked with the Purchase Order number shown on the face of the Purchase Order and such other information as Lucigen may request from time to time. Vendor shall state separately on its invoice the amount of state sales and/or use tax applicable to the sale of Goods and/or Services.
INSPECTION. Lucigen is entitled to inspect the Goods and/or Services (including the performance of tests) before or after receipt and reject them for failure to conform to the Purchase Order, regardless of whether any payment has been made by Lucigen, whether the nonconformity substantially impairs the value of the Goods and/or Services, or whether the nonconformity may be cured by Vendor. Lucigen has the right upon reasonable notice to enter Vendor’s facilities to inspect the production of Goods and/or performance of Services without precluding subsequent inspection and rejection of Goods and/or Services. If the inspection discloses, in Lucigen’s good faith opinion, that Vendor’s ability to meet the requirements of the Purchase Order is questionable, Lucigen may treat such circumstance as a material breach and terminate the Purchase Order without liability to Vendor. If Goods tendered pursuant to the Purchase Order are nonconforming, Lucigen may return all of the Goods to Vendor, at Vendor’s expense, for first priority repair, replacement or a refund at the election of Lucigen.
INDEPENDENT PARTIES. Agents, employees or other persons selected or directed by Vendor to perform the Purchase Order shall not be agents or employees of Lucigen, whether or not a separate charge is made for their services. Vendor agrees to indemnify, defend and hold harmless Lucigen from and against any claims arising out of the acts of Vendor, its employees, agents or contractors and against liability for taxes in connection with the services performed by Vendor, its employees, agents or contractors.
INSURANCE. Any insurance purchased by Vendor to cover loss or damage to the Goods in transit to Lucigen shall be solely at Vendor’s expense. If Vendor is performing Services, Vendor shall maintain a reasonable amount of insurance covering the risks associated with such Services and upon request name Lucigen as an additional insured and provide evidence of the same to Lucigen.
CHANGES. Lucigen is entitled, at any time, to change the specifications for the Goods and/or Services or any other matters relating to performance of the Purchase Order; provided that the price and/or delivery schedule may be equitably adjusted with Lucigen’s prior written consent to reflect additional costs and/or schedule adjustments required by the changes. Any claim for adjustment is waived unless made in writing within thirty (30) days after receipt of Lucigen’s written change order. Vendor shall not make any change or deviation to Goods and/or Services covered specifically by the Purchase Order, except with Lucigen’s prior written consent. Upon approval by Lucigen of the initial design, any process changes, design changes or deviations considered by Vendor must be submitted to Lucigen in writing for review. If changes are submitted for approval, the information submitted must include a complete description of the change and the effect the will have on all characteristics of the product. Upon request, Vendor shall submit samples of the proposed product for evaluation and approval by Lucigen.
WARRANTY SPECIFICATIONS. Vendor warrants that the Goods and/or Services will be free from defects in materials, workmanship and design (except to the extent such defective design is attributable to Lucigen). This warranty shall not be deemed waived by Lucigen’s acceptance of or payment for the Goods and/or Services.
COMPLIANCE WITH LAWS. Vendor represents and warrants that the Goods and/or Services are not manufactured or performed, and are not being sold or priced, in violation of any federal, state, or local law, executive order or administrative ruling. Vendor agrees to indemnify, defend, and hold harmless Lucigen from and against any and all claims, costs, damages, judgments, losses and expenses (including attorneys’ fees) incurred or resulting directly or indirectly by or to Lucigen as a direct or indirect result of the breach of any representation or warranty made by Vendor herein. Lucigen is a holder of U.S. Government grants and contracts and is subject to certain additional statutory, regulatory, and contract requirements by virtue thereof. If the Purchase Order is issued under a U.S. Government grant, prime contract or a subcontract under a U.S. Government grant or prime contract, Vendor agrees to comply with all statutory, regulatory, and contract requirements applicable to the prime contract or subcontract, copies of which may be furnished to Vendor upon Vendor's request.
INTELLECTUAL PROPERTY PROTECTION AND RIGHTS. Vendor warrants that the Goods do not infringe upon any third party’s intellectual property, including patents, copyrights, trademarks or trade secrets, and that Vendor has all necessary rights to sell or license the Goods. Vendor agrees to indemnify, defend and hold harmless Lucigen, its successors, assigns, customers and users of its products from and against all claims, costs, damages, judgments, losses and expenses (including attorneys’ fees) arising from the infringement or alleged infringement of any such intellectual property in connection with such Goods.
CONFIDENTIALITY. Vendor may not disclose to any third party (other than a government or judiciary body, as required by law) or use to the detriment of Lucigen, the existence or details of the Purchase Order or any agreement or arrangement with Lucigen, or any information Vendor receives or learns about Lucigen in connection with or as a result the Purchase Order, except as is necessary to perform the Purchase Order.
TERMINATION. Lucigen may terminate all or any part of the Purchase Order without cause by providing Vendor at least ten (10) calendar days’ notice in advance of the effective termination date. In the event of termination by Lucigen without cause, Lucigen’s liability shall be limited to the price of, and Vendor shall deliver to Lucigen, Goods and/or Services scheduled for delivery and/or performance during the period ending on the effective termination date. Lucigen shall not be liable to Vendor for any damages, costs or charges in respect of such termination without cause. Vendor hereby waives any right that it may have to specific performance under the Purchase Order. Lucigen may immediately terminate upon notice all or any part of the Purchase Order without obligation to Vendor upon the occurrence of any of the following causes: a) a material breach of any term of the Purchase Order by Vendor, including, but not limited to, untimely shipment of Goods, or shipments of Goods which do not conform to the Purchase Order, b) the filing by or against Vendor of any insolvency of bankruptcy proceedings or proceedings for reorganization, receivership or dissolution; or c) any material adverse change in the condition of Vendor, which Lucigen in good faith believes to impair the likelihood that Lucigen will receive timely and full performance of the Purchase Order.
LIMITATIONS. Any actions or claims by Vendor under the Purchase Order for breach, nonperformance or otherwise shall be commenced within twelve (12) months after the occurrence giving rise to the action or claim.
WAIVER. Lucigen’s rights hereunder may not be waived except by written instrument signed by an authorized agent. Lucigen’s waiver of a breach of the Purchase Order in one instance shall not be deemed a waiver with respect to any other breach.
SUCCESSORS; ASSIGNS. The Purchase Order shall be binding upon the representatives, successors and assigns of the parties; provided that Vendor may not assign the Purchase Order in whole or in part without the prior written consent of Lucigen and any such purported assignment shall be void.
APPLICABLE LAW; JURISDICTION. These terms and conditions and the resolution of any disputes arising out of it shall be governed by and interpreted in accordance with the laws (without giving effect to conflicts of law principles) of the State of Wisconsin. The parties agree to submit to the jurisdiction of the courts of Wisconsin for all matters relating to this Agreement.
