LUCID PRODUCT ORDER TERMS
These Lucid Product Order Terms (the “Agreement”) are by and between Lucid Consulting L.L.C. (“Lucid”) and the company named on the Lucid Order Form (“Buyer”).
Purpose of this Agreement. This Agreement shall set forth the terms and conditions pursuant to which Lucid shall sell certain of its products to the Buyer. The Lucid products so purchased by Buyer shall be referred to as the “Product(s)”. The Buyer shall purchase Products on the completed Lucid order form accepted by Lucid (the “Order”).
1. Orders and Shipments
a. Sale of Products. Buyer agrees to purchase from Lucid the Products described in the Order ("Products").
b. Price and Payment Terms. The price and payment terms for the Products are described in the Order (the "contract price"). The contract price does not include applicable federal, state and local taxes of any kind in effect on the date of the Agreement, such taxes shall be invoiced by Lucid and paid by Buyer, unless Buyer provides a tax exemption certificate from the applicable taxing authority. Payments not received when due will bear a finance charge of 1% per month, not to exceed the maximum amount of interest permitted under law. If collection efforts related to non-payment or late payment of Lucid invoices proves necessary, Buyer agrees to pay all fees incurred by that process, including reasonable attorney fees and court costs.
c. Shipments and Delivery. All transportation, shipping and handling charges shall be paid by Buyer. Lucid shall pack and ship the Products in accordance with its then-current practices, unless agreed to otherwise in the Order, and Lucid will select the method of transportation and carrier. Products shall be deemed delivered at the time they are turned over to the carrier by Lucid for shipment.
d. Security Interest. To secure payment and performance of all Buyer's obligations under this Agreement, Buyer grants to Lucid a security interest in the Products until payment in full and performance by Buyer of all such obligations. Upon request, Buyer shall execute and deliver to Lucid a supplement to this Agreement, security agreement, financing statement or other appropriate instrument to constitute the Products as the unencumbered security for the obligations of Buyer under this Agreement, or to enable Lucid to comply with all applicable filing or recording laws.
e. Shipping. Times quoted for delivery or readiness for operation are not guaranteed and are Lucid's best estimates only; Lucid shall in good faith endeavor to meet such stated times but reserves the right to vary the times of shipment and delivery. Lucid shall in no way be liable for any loss, injury, damage or other expense which Buyer or any other party may suffer by reason of such variation, and Buyer shall have no right to cancel the order, nor be entitled to any damages or setoff for any Products shipped after the estimated shipment date.
f. Acceptance. Products will be deemed accepted upon delivery unless Buyer rejects the Products within forty eight (48) hours of arrival at Buyer's designated destination. Claims for shortages, damage, or visible defects must be made in writing within that time period.
g. Title and License. Title and risk of loss to the Products shall pass to Buyer at the time Products are delivered to Buyer. However, Lucid retains a security interest on Products until payment in accordance with Section d above.
h. Additional Work/Buyer Changes. Work performed by Lucid for Buyer which is not included in Order shall be subject to additional charges. Changes requested by Buyer after production of Products has commenced will cause issuance of a new Order by Lucid and may result in a new price. No changes may be made without Lucid's prior written authorization.
2. LIMITED WARRANTY
a. Limited Warranty. Lucid warrants that the Products will be free from material defects in workmanship and materials and will substantially conform to specifications on the applicable Order for a period of ninety (90) days from the date of shipment to Buyer (the "warranty period"), provided that Buyer notify Lucid in writing of any defects within said warranty period.
b. Warranty Remedies. Lucid's responsibility for defective or nonconforming Products is limited, at Lucid's option, to either replacement of the defective Products or return to Buyer of monies received by Lucid from Buyer for those defective Products. No Products shall be returned to Lucid unless such return shall first have been authorized in writing by Lucid. Buyer will pay Lucid the cost of all charges, to include but not limited to a reasonable charge for examination and rework if the returned Products prove not to be defective or for work requested by Buyer that exceeds Lucid obligations under this Warranty.
c. Warranty Conditions. This warranty provided in this Section 2 extends only to Buyer. This Warranty does not apply to, and Lucid assumes no responsibility for, damage or defects due to any cause other than those specified above, including, but not limited to, damage or defects arising because of misuse, improper installation by Buyer's personnel or subcontractors, accident, neglect, modification, repair by Buyer, adverse conditions, and demands exceeding performance levels required by the Order. Incorporation of Products into Buyer's product terminates this warranty, even though the warranty period has not expired.
d. Warranty Disclaimer. The Products have not tested for compliance with any international, federal, state or industry laws, regulations, rules or standards including those mandated the Food and Drug Administration (collectively the (“Compliance REQUIREMENT”). It will be the Buyer’s sole obligation to comply with such Compliance REQUIREMENTS as necessary FOR BUYER to test, incorporate, market, PROMOTE, distribute, EXPORT, sell and use the Products.
e. Further Disclaimers. THE WARRANTIES PROVIDED IN THIS SECTION 2 ARE THE ONLY WARRANTIES PROVIDED BY LUCID AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
3. LIMITED LIABILITY. IN NO EVENT SHALL LUCID BE LIABLE TO BUYER FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR SHALL IT BE LIABLE FOR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE INCURRED BY BUYER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, OR TORT, OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LUCID'S LIABILITY FOR DAMAGES TO BUYER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS PURCHASED BY BUYER FROM LUCID DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THAT THE LIABILITY AROSE.
4. Lucid's Remedies for Cancellation. Lucid remedies. If Buyer terminates an Order for any cause other than a material, uncured breach by Lucid, then, at Lucid's option, and in addition to all other remedies available at law or in equity: (i) Buyer shall accept delivery of and pay the contract price for all Products which are either finished or ready for shipping; and (ii) Buyer shall reimburse Lucid for (I) all actual costs incurred by Lucid in connection with the uncompleted Order as of receipt of notice of cancellation; and (2) all other costs, including but not limited to, general, selling and administrative expenses, cancellation charges incurred by Lucid (if any), and a reasonable profit on the terminated portion of the Order. In the event of the bankruptcy, insolvency, dissolution, modification or amalgamation of, or the institution of voluntary or involuntary receivership proceedings by Buyer, then the Lucid shall have the right to terminate this Agreement with written notice to the Buyer.
5. Insurance and Compliance with Laws. Buyer assumes responsibility for ensuring that the storage, use and/or disposal of Products shipped by Lucid will be in full compliance with all applicable laws and regulations, including those relating to toxic substances and environmental matters. Buyer assumes all risk and liability resulting from its use and/or disposal of Products shipped to Buyer by Lucid.
6. Export Control. Buyer represents and warrants that it understands that the Products and their components may be subject to export controls under the U.S. Commerce Department's Export Administration Regulations ("EAR") and/or the Food and Drug Administration. Buyer shall be solely responsible for strict compliance with all applicable export laws, regulations and rules including those noted above.
7. Indemnity. Buyer shall indemnify and hold harmless Lucid from and against any and all liability, damages, costs (including reasonable attorneys’ fees and expenses), losses and expenses arising out of or in connection with (a) any personal injury, including death, or any damage to property or business which may be caused by Buyer's breach of the Agreement, or use, operation, or failure to operate the Products delivered under this Agreement, except to the extent caused by the gross negligence or willful misconduct of Lucid; or (b) Buyer’s breach of Sections 2(d), 5, 6 or 8.
8. Proprietary Rights
a. Intellectual Property. "Intellectual Property" as used in this Agreement means (i) patents, patent applications, continuations, continuations-in part, divisions, reissues, patent disclosures, inventions (whether or not patentable) or improvements thereto; (ii) trademarks, service marks, domain names, logos, trade dress and trade names (whether registered or unregistered), and pending applications to register the foregoing; (iii) copyrights (whether registered or unregistered) and pending applications to register the same; and (iv) confidential ideas, trade secrets, know-how, concepts, methods, processes, formula, reports, data and other proprietary information. Except as specifically set forth herein, all right, title and interest in and to a party's Intellectual Property shall be solely and exclusively vested in such party and no ownership, interest, right or license is granted to the other party.
b. Created Intellectual Property. As an exception to 8.a above, Buyer recognizes and acknowledges that, in the course of manufacturing Products, Lucid may invent, develop or discover methods, techniques, processes, technology, know-how, formulas or software that have application in Lucid's business generally and are not specific to the Products ("Lucid's Developments"). Lucid's Developments shall be the sole and exclusive property of Lucid.
c. No Reverse Engineering. In consideration of receipt of Products, Buyer covenants and agrees not to reverse engineer any Products purchased, not to assist any other party (including a parent, member, subsidiary, affiliate or otherwise) to do so.
d. Infringement Indemnification. Lucid will defend and indemnify Buyer against a third-party claim brought against Buyer that the Products infringe a United States copyright or patent, provided that: (i) Buyer notifies Lucid in writing within 20 days of the claim; (ii) Lucid has sole control of the defense and all related settlement negotiations; and (ii) Buyer provides Lucid with the assistance, information and authority necessary to perform Lucid's obligations under this section. Lucid will have no defense or indemnity obligation for any claim based upon modification of Products, other than by Lucid, or use or combination of Products with a Buyer's or any third party's products. THE Foregoing STATES LUCID'S ENTIRE LIABILITY AND BUYER'S EXCLUSIVE REMEDIES WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Miscellaneous
a. Independent Contractor. Lucid shall provide the Products to Buyer as an independent contractor.
b. Sole Benefit of the Parties. This Agreement is entered into solely for the benefit of the parties hereto, and no other person shall acquire the right to enforce any provision of this agreement against either party.
c. Force Majeure. If Lucid's ability to perform its obligations under this Agreement is limited, delayed or prevented in whole or in part by any reason whatsoever not reasonably within the control of Lucid, or its suppliers, including, but not limited to, act of God, war, epidemic, pandemic, quarantine, invasion, act of foreign enemy, hostilities, civil war, rebellion, civil strife, strikes or industrial dispute, insolvency or bankruptcy of a supplier, or by any law, rule, regulation, order or other action by any public authority, transportation delays or the refusal of any necessary license, then Lucid shall be excused, discharged, and released from performance to the extent such performance is so limited, delayed or prevented, without liability of any kind.
d. Severability and Waiver. Any provision of this Agreement prohibited by or unlawful under any applicable law of any jurisdiction shall, as to such jurisdiction, be deemed invalid, without invalidating the remaining provisions of this Agreement; provided, however, that where the provisions of any such applicable law may be waived, Buyer agrees to waive such provisions to the full extent permitted by law, to the end that this Agreement shall otherwise be deemed to be valid, binding, and enforceable in accordance with its terms.
e. No Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party except to (i) a wholly owned subsidiary or (ii) any third party- who will acquire, by sale of assets or otherwise (including merger, acquisition or reorganization), all or substantially all the assets of such party. No such assignment will relieve the assigning party of its obligations hereunder.
f. Notices. All notices to be given under this Agreement will be in writing and sent by personal delivery, or by a recognized international expedited carrier such as FedEx or DHL, to the other party at address set forth in the Order. Any notice given as aforesaid will be deemed given and effective upon actual delivery. Each party may change its address of notice by written notice.
g. Governing Law, Venue. This Agreement will be construed in accordance with and governed solely by the laws of the State of Minnesota, without regard to its conflict of laws rules. Any actions brought under this Agreement will have venue solely in the state or federal courts in Hennepin County, Minnesota. All provisions that are continuing in nature will survive termination of this Agreement.
h. Entire Agreement. Excepting any executed prior confidentiality agreement between the parties, this Agreement (including any current or subsequent Orders as accepted by Lucid) shall constitute the entire agreement between the parties and supersede all prior or contemporaneous agreements, understandings, representations, discussions, proposals, and the like, written or oral. No other terms or conditions, nor any addition to, waiver or modification of the provisions of this Agreement shall be binding unless made in a writing signed by an officer of Lucid. In the event of a conflict between these terms and conditions and any other terms and conditions, quotations or purchase order, these term and conditions shall take precedence over and supersede any conflicting terms. The pre-printed portions of Buyer's acceptance forms, packing slips, invoices or other documents shall not be binding on Lucid for any purpose.
i. Waiver. No waiver of any provision or performance hereof shall be effective unless made in writing and signed by the waiving party. The failure of either party to require the performance of any term or obligation of the Agreement, or the waiver by either party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.