1. Applicability
All purchases by LuxWall, Inc. (“LuxWall”) for goods and/or services provided by any Vendor (“Vendor”) shall be governed exclusively by these LuxWall General Terms and Conditions (“Terms”) and the purchase order (“Purchase Order”) issued by LuxWall (collectively, the “Agreement”).
2. Acknowledgement; Acceptance of Order
A purchase order issued by LuxWall is an offer to Vendor from LuxWall to purchase from Vendor the goods and/or services referenced in the Purchase Order exclusively under these terms and conditions. The Purchase Order shall be deemed accepted by Vendor upon any of the following: (a) Vendor’s acknowledgment of the Purchase Order; (b) Vendor’s commencement of performance or its shipment of goods; (c) Vendor’s acceptance of any payment under the Purchase Order; or (d) Vendor’s failure to deliver written notice of rejection to LuxWall within ten (10) days of receipt of the Purchase Order. LuxWall expressly rejects and shall not be bound by any provision, printed or otherwise, at variance or in addition to the Purchase Order and these terms and conditions that may appear on any quotation, acknowledgement or other form used by Vendor. This Agreement expressly limits Vendor’s acceptance to the terms of this Agreement.
3. Delivery of Goods
Vendor shall deliver the goods identified in the Purchase Order (the “Goods”) on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the Goods is of the essence. Delivery terms shall be FCA shipping point as identified on the Purchase Order unless otherwise stated on the Purchase Order. If Vendor fails to deliver the Goods in full on the Delivery Date, LuxWall may terminate the Purchase Order immediately by providing written notice to Vendor and Vendor shall indemnify LuxWall against any losses, claims, damages, and reasonable costs and expenses attributable to Vendor’s failure to deliver the Goods on the Delivery Date.
4. Inspection and Rejection of Nonconforming Goods
LuxWall has the right to inspect the Goods on or after the Delivery Date. LuxWall, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If LuxWall rejects all or any portion of the Goods, LuxWall has the right, effective upon written notice to Vendor, to: (a) rescind the Purchase Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If LuxWall requires replacement of the Goods, Vendor shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of such Goods and the delivery of replacement Goods. If Vendor fails to timely deliver replacement Goods, LuxWall may replace such goods with goods from a third party, charge Vendor the extra cost thereof and terminate the Purchase Order. Any inspection or other action by LuxWall under this Section shall not reduce or otherwise affect Vendor’s obligations under this Agreement, and LuxWall shall have the right to conduct further inspections after Vendor has carried out its remedial actions.
5. Manufacturing Changes
Vendor shall not make any changes to the manufacturing process (including raw materials) that may affect the form, fit, function, safety or quality of the Goods without receiving prior written approval from LuxWall. LuxWall reserves the right at any time prior to the delivery date of the goods or services to make changes to the drawings, designs or specifications of the Goods ordered, the method of packing and shipping, the time, place or method of delivery or the quantity of Goods ordered. If any such change causes an increase or decrease in the cost of the Goods or the time required delivery, an equitable adjustment shall be made and the Purchase Order shall be modified in writing accordingly. Vendor shall be deemed to have waived any claim for adjustment for performance of the change if it does not provide written notice of such claim to LuxWall within 7 days from the receipt by Vendor of notification of the change.
6. Payment
Vendor shall issue an invoice to LuxWall on or any time after the Delivery Date in accordance with this Agreement. LuxWall shall not be invoiced at a price(s) higher than prices quoted or as shown on the face of the Purchase Order Order. LuxWall shall pay all undisputed invoiced amounts within thirty (30) days after LuxWall’s receipt of such invoice. LuxWall shall pay Vendor in US dollars.
7. Setoff
Without prejudice to any other right or remedy it may have, LuxWall reserves the right to set off at any time any amount owing to it by Vendor against any amount payable by LuxWall to Vendor.
8. Warranty
Vendor expressly represents and warrants that all Goods furnished in fulfillment of a Purchase Order shall conform to applicable specifications, samples, prototypes, or other rendered descriptions, and that all Goods will fit and be suitable for their intended use, that they are merchantable and free of all liens and encumbrances, of good quality and free from defects, whether patent or latent, in materials, workmanship, design and production. Vendor also warrants that, to the extent applicable, all Goods shall comply with provisions of any federal, state or local law pertinent to the manufacture or intended use thereof. Payment for, inspection of, or receipt of Goods shall not constitute acceptance of the Goods or a waiver of any breach of warranty. The warranties set forth in this Section are cumulative and in addition to any other warranty provided by law or equity.
9. Remedies
The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
10. Indemnification
Vendor agrees to indemnify, defend and hold LuxWall, its successors or assigns and its respective directors, officers, shareholders and employees (collectively, “Indemnitee”), free and harmless from and against any and all losses, damages, liabilities, actions, judgments, costs, and expenses (including but not limited to reasonable attorneys’ fees and other expenses of litigation and the replacement cost of Goods), suffered, incurred, or asserted by or against Indemnitee (a) by reason of Vendor’s breach of warranty; (b) by reason of Vendor’s breach of any term of this Agreement; (c) by reason of any Goods infringing on any patent, trademark, copyright, trade secret or other proprietary right owned by a third party; or (d) by reason of personal injury, including death, or property damage sustained by a third party, resulting from arising out of an act or omission of Vendor, or Vendor’s agents, employees, or contractors in fulfillment of a Purchase Order.
11. Intellectual Property
All intellectual property owned by LuxWall prior to the Purchase Order or developed by LuxWall independent of Vendor shall remain LuxWall’s property. Nothing in the Purchase Order or this Agreement shall be construed as granting Vendor any rights to LuxWall’s intellectual property. All intellectual property developed, made or conceived, or actually or constructively reduced to practice pursuant to the Purchase Order shall be owned by LuxWall. All intellectual property or portions thereof that are included within the definition of a “work made for hire” under the U.S. Copyright Act will be considered a “work made for hire” and LuxWall will be deemed the sole author and owner of any such works. Vendor agrees to execute whatever documents may be reasonably requested by LuxWall to evidence such ownership. {39549/1/D1796258.DOCX;4}
12. Limitation of LuxWall’s Liability
IN NO EVENT, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, THE CLAIMS ASSERTED, OR THE PERSON ASSERTING SUCH CLAIMS, SHALL LUXWALL’S LIABILITY IN THE AGGREGATE FOR ALL SUCH MATTERS, EXCEED THE PRICE PAID BY LUXWALL UNDER THE PURCHASE ORDER, AND VENDOR WAIVES ANY CLAIM TO ANY OTHER DAMAGES OR REMEDIES UNDER ANY CAUSE OF ACTION. VENDOR AGREES THAT LUXWALL SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, LOSS OF REVENUE, COST OF CAPITAL, FINES, PENALTIES AND THE LIKE, ENVIRONMENTAL LIABILITY AND DAMAGE, INJURY OR LOSS TO OTHER PROPERTY OR EQUIPMENT OR FOR PERSONAL INJURIES TO VENDOR’S EMPLOYEES OR THIRD PARTIES. CLAIMS MUST BE MADE TO LUXWALL WITHIN A PERIOD OF TWELVE (12) MONTHS FROM THE DATE OF THE OCCURRENCE OF THE EVENT GIVING RISE TO THE DAMAGE, OR THE CLAIM IS FORFEITED.
13. Governing Law
All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Michigan.
14. Submission to Jurisdiction
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Michigan in each case located in the County of Washtenaw, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
15. Insurance
During the term of the Purchase Order, Vendor shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum reasonably acceptable to LuxWall. Upon LuxWall’s request, Vendor shall provide LuxWall with a certificate of insurance from Vendor’s insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name LuxWall as an additional insured. Vendor shall provide LuxWall with thirty (30) days’ advance written notice in the event of a cancellation or material change in Vendor’s insurance policy.
16. Compliance with Law
Vendor shall comply with all applicable laws, regulations and ordinances. Vendor has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Purchase Order.
17. Confidential Information
All non-public, confidential or proprietary information of LuxWall, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists or pricing disclosed by LuxWall to Vendor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Purchase Order is confidential, solely for the use of performing the Purchase Order and may not be disclosed or copied unless authorized by LuxWall in writing. Upon LuxWall’s request, Vendor shall promptly return all documents and other materials received from LuxWall. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Vendor at the time of disclosure; or (c) rightfully obtained by the Vendor on a non-confidential basis from a third party.
18. Assignment
Vendor shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Agreement without the prior written consent of LuxWall. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Vendor of any of its obligations hereunder. LuxWall may at any time assign, transfer or subcontract any or all of its rights or obligations under the Agreement without Vendor’s prior written consent.
19. Termination
In addition to any remedies that may be provided under this Agreement, LuxWall may terminate a Purchase Order with immediate effect upon written notice to Vendor, either before or after the acceptance of the Goods, if Vendor has not performed or complied with any of the terms of this Agreement, in whole or in part. If Vendor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then LuxWall may terminate the Purchase Order upon written notice to Vendor. If LuxWall terminates a Purchase Order for any reason, Vendor’s sole and exclusive remedy is payment for conforming Goods received and accepted by LuxWall prior to the termination. Further, LuxWall may at its option terminate all or any part of the Agreement (including any outstanding Purchase Orders) at any time and for any reason by giving written notice to Vendor in which case LuxWall’s sole obligation to Vendor shall be to reimburse Vendor for its reasonable costs and expenses actually incurred as of the date of termination with respect to any open Purchase Orders; provided, however, LuxWall shall not have any obligation if the Goods are stock and can be sold by Vendor to other customers.
20. Waiver
No waiver by any party of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
21. Entire Agreement
This Agreement constitutes the entire agreement between the parties regarding the subject matter contained herein, and such agreement supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of the Agreement.
22. Notices
All notices hereunder shall be in writing and shall be sent to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing.
23. Severability
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
