LuminUltra Technologies Inc.
805 Pinnacle Drive, Suite M
Baltimore, MD USA 21090
PURCHASE AGREEMENT
This Agreement, made as of the earlier of (i) the date acceptance is communicated to LuminUltra by means of electronic mail (ii) the signing of this document at bottom or (iii) the date the purchaser evidences acceptance by way of receipt of goods and/or services from LuminUltra, is between the purchaser of goods and/or services under this Agreement (the “Customer”) and LuminUltra Technologies Inc. (“LuminUltra”), including where it may be applicable its affiliates, including as may be set forth in Schedule A.
WHEREAS, LuminUltra and the Customer (collectively the “Parties” or “Party” as the case may be) wish to enter into this Agreement pursuant to which the Customer will obtain from LuminUltra the LuminUltra products and/or services defined in Schedule A (attached) (the “Products”, the “Custom Products”, the “Testing Services”, the “Data Analysis Services”, the “Equipment/Monitoring System” and “Training” as the case may be).
NOW THEREFORE for valuable consideration, the Customer and LuminUltra Technologies Ltd. (“LuminUltra”) agree as follows:
If purchasing PRODUCTS and/or CUSTOM PRODUCTS, the following terms apply:
1. Purchase of Products. If applicable, LuminUltra shall sell to the Customer, and the Customer shall purchase from LuminUltra, the Products in the quantities and at the Prices (as defined below) set forth in Schedule A, and upon the terms and conditions set forth in this Agreement.
2. Purchase of Custom Products. If applicable, LuminUltra shall sell to the Customer, and the Customer shall purchase from LuminUltra, the products without LuminUltra branding for the purposes of resale under the Customer’s brand (the “Custom Products”) set forth in Schedule A in the quantities and at the Prices (as defined below) set forth in same, and upon the terms and conditions set forth in this Agreement.
3. Delivery. The Products and/or Custom Products will be shipped within a reasonable time after the execution of this Agreement, subject to the availability of finished Products. LuminUltra shall not be liable for any delays, loss or damage in transit.
LuminUltra shall ship the Products and/or Custom Products to the address of the Customer specified in Schedule A (the “Customer’s Address”) using LuminUltra’s standard methods for packaging and shipping such Products and/or Custom Products and at the Customer’s sole expense. LuminUltra shall give notice to the Customer in writing that the Products and/or Custom Products have been shipped.
LuminUltra may, in its sole discretion, without liability or penalty, make partial shipments of the Products and/or Custom Products to the Customer. Each shipment will constitute a separate sale, and the Customer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the quantity purchased under this Agreement.
4. Non-Delivery. The quantity of any instalment of Products and/or Custom Products as recorded by LuminUltra on dispatch from LuminUltra’s place of business is conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
5. Title and Risk of Loss. Title and risk of loss passes to the Customer upon departure from LuminUltra’s facility. As collateral security for the payment of the purchase price of the Products and/or Custom Products, the Customer hereby grants to LuminUltra a security interest in and to all of the right, title and interest of the Customer in, to and under the Products and/or Custom Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
6. Inspection and Rejection of Non-conforming Products. The Customer shall inspect the Products and/or Custom Products upon receipt thereof. The Customer will be deemed to have accepted the Products and/or Custom Products unless it notifies LuminUltra in writing of any Non-Conforming Products and/or Custom Products within 5 days and furnishes such written evidence or other documentation as required by LuminUltra. “Non-Conforming Products” means only the following: (i) product shipped is different than identified in this Agreement; or (ii) product’s label or packaging incorrectly identifies its contents.
If the Customer timely notifies LuminUltra of any Non-Conforming Products, LuminUltra shall, in its sole discretion, (i) replace such Non-conforming Products with conforming Products, or (ii) credit or refund the Price for such Non-Conforming Products. The Customer shall ship, at its expense and risk of loss, the Non-Conforming Products to LuminUltra’s facility located at the address specified in Schedule A. If LuminUltra exercises its option to replace Non-conforming Products, LuminUltra shall, after receiving the Customer’s shipment of Non-conforming Products, ship to the Customer, at the Customer’s expense and risk of loss, the replaced Products to the Customer’s requested address.
The Customer acknowledges and agrees that the remedies set forth in this section are the Customer’s exclusive remedies for the delivery of Non-conforming Products. All sales of Products and/or Custom Products to the Customer are made on a one-way basis and, unless otherwise specifically provided herein, the Customer has no right to return Products and/or Custom Products purchased under this Agreement to LuminUltra.
7. Warranties on Products and/or Custom Products. The Products and/or Custom Products are guaranteed for a period of one (1) year from the date of purchase (the “Warranty”). If any failure is found in the workmanship or materials of any purchase Product within this warranty period (the “Defective Product”), LuminUltra will repair or replace the defective parts without charge. However, the warranty does not cover any of the following cases even if within the warranty period:
i. the Defective Product has been misused or modified;
ii. the Defective Product is the result of accidents such as natural or man-made disasters;
iii. the Defective Product has been dropped; or
iv. the Defective Product is the result of the use of an incorrect adapter or battery.
The Warranty is limited to the repair or replacement of the Defective Product by LuminUltra. The Warranty does not cover damage incurred during shipment of an instrument meant for repair.
After the Warranty has expired, repair and/or replacement costs required to recover the original functions of a Defective Product will be charged to the Customer. The Warranty does not cover incidental or consequential costs, expenses, or damages resulting from the breach of any express or implied warranty including any costs of programs, data stored, damages to property, and damages for personal injury.
The Customer may, at its election, obtain an extended warranty on Custom Products purchased from LuminUltra (the “Extended Warranty”) for additional fees. If purchased, as indicated in the attached Schedule A and in the calculation of the Prices (as defined below), the terms and conditions shall be contained in section 8 (below).
8. Extended Warranty. If the Extended Warranty is purchased in the manner set out in Section 7, LuminUltra agrees to provide the Extended Warranty for the period and at the price indicated in the attached Schedule A. With the exception of the warranty period, the Extended Warranty shall be subject to the same conditions as the Warranty as set out in Section 7 of this Agreement.
If obtaining TESTING SERVICES from LuminUltra, the following terms and conditions shall apply:
9. Performance of Testing Services. If applicable, LuminUltra shall perform the Testing Services described in Schedule A in a manner consistent with that degree of care, skill and diligence as is ordinarily exercised by a professional laboratory testing contractor under similar conditions and circumstances, and each individual whom LuminUltra intends to engage to perform the Testing Services will possess the qualifications, licences, skills and experience needed to perform such services.
LuminUltra shall use commercially reasonable efforts to meet any performance dates specified in Schedule A, and any such dates shall be estimates only.
LuminUltra will comply with all federal, state/provincial and local laws, rules and regulations applicable to the performance of its obligations under this Agreement.
10. Customer’s Obligations. The Customer shall cooperate with LuminUltra in all matters relating to the Testing Services and provide such accommodation as may be reasonably requested by LuminUltra for the purposes of performing the Testing Services, and shall provide such Customer materials or information as LuminUltra may request to carry out the Testing Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects.
11. Sample Submission. The Customer may, from time to time and at the Customer’s sole expense, provide samples or other materials (“Materials”) to LuminUltra to be tested or otherwise used in connection with the performance of the Testing Services. The Customer represents, warrants and covenants that the Customer has all right, title and interest in and to any Materials provided to
LuminUltra, or that it has the right to provide such Materials to LuminUltra in connection with the Testing Services.
If obtaining DATA ANALYSIS SERVICES from LuminUltra, the following terms and conditions shall apply:
12. Performance of Data Analysis Services. If applicable, LuminUltra shall perform the Data Analysis Services described in Schedule A in a manner consistent with that degree of care, skill and diligence as is ordinarily exercised by a professional analytical service contractor under similar conditions and circumstances, and each individual whom LuminUltra intends to engage to perform the Data Analysis Services will possess the qualifications, licences, skills and experience needed to perform such services.
LuminUltra shall use commercially reasonable efforts to meet any performance dates specified in Schedule A, and any such dates shall be estimates only.
LuminUltra will comply with all federal, provincial/state and local laws, rules and regulations applicable to the performance of its obligations under this Agreement.
Upon completion of the Data Analysis Services, LuminUltra shall provide the Customer with a report of the results of the Data Analysis Services in a form and manner prescribed by LuminUltra from time to time.
13. Customer’s Obligations. The Customer shall cooperate with LuminUltra in all matters relating to the Data Analysis Services and provide such accommodation as may be reasonably requested by LuminUltra for the purposes of performing the Data Analysis Services, and shall provide such Customer data or information as LuminUltra may request to carry out the Data Analysis Service in a timely manner and ensure that such Customer data or information are complete and accurate in all material respects.
14. Data Submission. The Customer shall submit to LuminUltra, in the manner determined by LuminUltra from time to time, such Customer data or information that is required to be analyzed or otherwise used in connection with the performance of the Data Analysis Services. The Customer represents, warrants and covenants that the Customer has all right, title and interest in and to any data or information provided to LuminUltra by the Customer, or that it has the right to provide such data or information to LuminUltra in connection with the Data Analysis Services.
If obtaining EQUIPMENT/MONITORING SYSTEM AND TRAINING from LuminUltra, the following terms and conditions shall apply:
15. Equipment/Monitoring System and Training. If applicable, LuminUltra shall sell to the Client, and the Client shall purchase from LuminUltra, the Equipment/Monitoring System and Training and at the Prices (as defined below) and upon the terms and conditions set forth in this Agreement. LuminUltra shall also install the Equipment/Monitoring System.
LuminUltra shall provide training for the Customer as described in Schedule A. LuminUltra shall use reasonable efforts to meet any performance dates specified in Schedule A, and any such dates shall be estimates only. The Customer acknowledges that LuminUltra makes no warranty regarding the results to be attained by using the Training.
16. Delivery and Installation. The Equipment/Monitoring System will be delivered within a reasonable time after the execution of this Agreement, subject to the availability of an Equipment/Monitoring System. LuminUltra shall not be liable for any delays, loss or damage in transit. On a mutually agreed upon date, LuminUltra shall install the Monitoring System at the facilities of the Customer as specified in Schedule A.
17. Training Location and Equipment. LuminUltra shall provide all Training at LuminUltra’s facilities or an otherwise mutually agreed location, or remotely by means of a videoconference or online portal. LuminUltra shall provide all equipment, including software, necessary to provide the Training.
18. LuminUltra’s Covenants. Subject to any other part of this Agreement, LuminUltra covenants i) to provide an employee to serve as a primary contact with respect to this Agreement and who will have the authority to act on behalf of LuminUltra in connection with the Training, and ii) to provide LuminUltra personnel who shall be suitably skilled, experienced and qualified to perform the Training.
19. Customer Covenants. The Customer shall not without LuminUltra’s prior written consent i) copy LuminUltra’s copyrighted material; ii) use LuminUltra’s trade-marks, trade names, or other designations in any promotion or publication; or iii) use recording equipment in training sessions. The Customer shall also cause each of its employees who are receiving Training to execute a release of liability and assumption of risk in form and substance satisfactory to LuminUltra.
20. Trainer Compensation. LuminUltra is responsible for the payment of all LuminUltra personnel compensation in connection with the Training, including, if applicable, the withholding of income taxes, and the payment and withholding of Canada Pension Plan contributions, Employment Insurance premiums and other payroll taxes, workers’ compensation insurance payments and disability benefits.
The following additional terms SHALL APPLY to any and all products and services provided by LuminUltra to the Customer:
21. Customer’s Acts or Omissions. If LuminUltra’s performance of any of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer or its agents, subcontractors, consultants or employees, LuminUltra shall not be deemed to be in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by the Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
22. Retesting and Correction of Work product and Liability Limitation. The Customer may request that LuminUltra re-perform any services completed, and/or review the substance and accuracy of any related work product produced, by or on behalf of LuminUltra hereunder; or correct any inaccuracies or errors in any such Services and/or work product. If, upon completing the retesting reanalysis, LuminUltra confirms its original results, then the Customer will be charged for the retesting or reanalysis performed by LuminUltra in accordance with this Agreement. However, the Customer will not be charged for any retesting or reanalysis performed by LuminUltra to correct any inaccuracies, or errors made by LuminUltra, in the Testing Services and/or work product originally performed or produced by LuminUltra. Furthermore, notwithstanding anything herein to the contrary, LuminUltra will not be liable for any direct, indirect, consequential, incidental, exemplary, indirect, punitive or special damages, including, without limitation, loss of profits or loss of business opportunities.
23. Use of Software. If the products and/or services the Customer is purchasing includes any Software or access to Software provided by LuminUltra (the “Software”) such as the LuminUltra Cloud, the use of said Software shall be subject to the terms of this Agreement. The use of the Software will also be subject to LuminUltra’s End User Licence Agreement (“EULA”), a copy of which shall be available with the Software or the use thereof and upon request to LuminUltra.
24. Payment. The Customer shall purchase any products and/or servicers from LuminUltra at the prices (the “Prices”) set forth in Schedule A. All Prices are exclusive of all harmonized sales tax, goods and services tax, sales tax, valued added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by the Customer. The Customer shall be responsible for all such charges, costs and taxes. Freight is not included in any Prices and Customer is responsible for all freight costs if shipping is not separately purchased from LuminUltra.
The Customer shall pay all invoiced amounts due to LuminUltra at the earlier of the time specified in Schedule A or within 30 days from the date of LuminUltra’s invoice. The Customer shall make all payments hereunder by wire transfer or credit card and in the currency contemplated in Schedule A. The Customer shall pay interest on all late payments at the lesser of the rate of 1% per month (12% per annum), calculated daily and compounded monthly. The Customer shall reimburse LuminUltra for all costs incurred in collecting any late payments, including, without limitation, legal fees on a substantial indemnity basis.
25. Amendments and Other Agreements. Changes to this Agreement will be made only if agreed to in writing in the form of an amendment executed by the authorized representatives of both parties. In the event of any inconsistencies between any other prior agreement between the Parties and this Agreement, the provisions of this Agreement shall prevail.
26. Confidential Information. In connection with this Agreement, the disclosing party may disclose Confidential Information (as defined below) to the recipient party. The recipient party shall use the Confidential Information solely for the purpose of this Agreement and shall not disclose the Confidential Information other than to its employees, officers, directors, partners, agents, independent contractors, service providers, sublicensees, subcontractors, lawyers, accountants and financial advisors who: (i) need access to such information for the purpose of this Agreement; (ii) are informed of its confidential nature; and (iii) are bound by confidentiality obligations no less protective of the Confidential Information than the terms contained herein. The recipient party shall protect the Confidential Information from unauthorized use, access or disclosure using no less than a commercially reasonable degree of care.
27. Representations & Warranties. LuminUltra hereby represents and warrants that it has the power and authority to enter into this Agreement, and is duly licenced, authorized and qualified to perform any and all obligations.
The Customer hereby represents and warrants that it has the power and authority to enter into this Agreement.
EXCEPT TO THE EXTENT OF THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT, AND NOTHWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED HEREIN OR IN ANY PURCHASE ORDER, REPORT OR OTHER STATEMENT OR INSTRUMENT, LUMINULTRA MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROCURED PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THE PARTIES ACKNOWLEDGE THAT ANY AND ALL PRODUCTS SUPPLIED UNDER THIS AGREEMENT ARE NOT “CONSUMER PRODUCTS” UNDER ANY APPLICABLE LEGISLATION.
28. International Sale of Goods Matters. The Customer and LuminUltra agree to expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
29. Trade Compliance. Customer represents and warrants that it is not listed on or majority owned by, and shall not engage with, any party listed on applicable government restricted party lists including but not limited to those maintained by the United States Government (e.g. Specially Designated List, the Entity List, Denied Persons List), the Canadian government (Consolidated Canadian Autonomous Sanctions List), or the European Union (Consolidated List Of Persons, Groups And Entities Subject To EU Financial Sanctions).
Customer also represents and warrants that it will not transfer or reexport any of LuminUltra’s goods, technology, technical data or services to sanctioned countries and territories, currently including but not limited to Iran, North Korea, Syria, Crimea, Donetsk, Luhansk, Cuba (if Customer is a U.S. person) and Venezuela.
Customer acknowledges and accepts that LuminUltra’s products, technologies, technical data and services (“Items”) may be subject to export control, sanctions laws and regulations, including but not limited to those of Canada and the United States of America (e.g. Canadian Export Control List, U.S. Export Administration Regulations).
The Customer agrees that it shall not export, re-export, transfer, disclose, or use any Items subject to this Agreement in any manner contrary to applicable export control and sanctions laws. This includes, but is not limited to:
(i) exporting or re-exporting Items to any country, entity, or individual subject to export restrictions or sanctions without first obtaining all necessary government authorizations, licenses, or approvals;
(ii) distributing or using Items in support of end-uses related to weapons of mass destruction, including nuclear, chemical, or biological weapons, or missile technology;
(iii) transferring Items to military or defense end-users or for military end-uses unless such transfers are authorized under applicable export control laws and regulations.
Where the end user may be a military or defense related entity, the Customer shall ensure that all required export licenses, permits, or other regulatory approvals have been obtained prior to any transfer.
Customer shall also maintain accurate and complete records for a minimum of ten (10) years documenting the end user, end use, destination, and all associated licenses or authorizations. Such records shall be made available to the LuminUltra upon reasonable request, and to regulatory authorities as required by law.
A breach of this provision by the Customer shall be considered a material breach of this Agreement. In case of a breach of this provision, Customer shall indemnify and hold harmless Luminultra, its directors, shareholders, officers, and employees from and against all governmental penalties and fines that result from the Customer’s breach of this provision.
30. LuminUltra Not Liable. Any sample work product will relate only to those specific samples tested by LuminUltra in the provision of the services, and in no way can be taken or relied upon as being representative of any other portion of the lot or batch from which such samples were taken. LuminUltra assumes no responsibility for the purposes for which the Customer or any third party uses any work product, and the Customer may not and will not, under any circumstances, hold out or represent to any third party that LuminUltra has in any way whatsoever certified, guaranteed or otherwise passed judgment on the efficacy of any results derived from the performance of LuminUltra’s services, except to the extent LuminUltra has certified it has performed the services in accordance with this Agreement.
31. Maximum Liability of LuminUltra. IN NO EVENT SHALL LUMINULTRA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO LUMINULTRA PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
32. Notice. All Notices shall be delivered in writing (including without limitation by personal delivery, courier, regular mail, email, or facsimile) and addressed to the other Party at the addresses set forth in Schedule A. Except as otherwise provided in this Agreement, a Notice is effective only upon receipt by the receiving party and if the party giving the Notice has complied with the requirements of this section.
33. Independent Contractor. LuminUltra is and shall remain at all times an independent contractor and not an employee nor dependent contractor of the Customer. Nothing in this Agreement shall be construed to create any association, partnership, joint venture, agency, fiduciary, or employment relationship between LuminUltra and the Customer, for any purpose, and neither party has the authority to contract for or bind the other party in any manner whatsoever.
34. Force Majeure. No party shall be liable or responsible to the other party, nor deemed to be in default or in breach of this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from a Force Majeure Event. The impacted party shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue.
35. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trade-marks, service marks, trade secrets, know- how and other confidential information, trade dress, trade names, logos, corporation names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product or other materials that are delivered to the Customer under this Agreement or prepared by or on behalf of LuminUltra in the course of performing its obligations under this Agreement shall be owned at all times by LuminUltra. LuminUltra hereby grants the Customer a licence to use the Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non- transferable, non-sublicenceable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable the Customer to make reasonable use of any Services and Products contemplated under this Agreement.
36. No Exclusivity. LuminUltra shall provide the Products to the Customer on a non-exclusive basis and shall be free to provide its goods and/or services to third parties during the term of this Agreement.
37. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable, such deficiency shall not affect any other term of this Agreement, or invalidate or render unenforceable such term or provision in any other jurisdiction.
38. Assignment. This Agreement may not be assigned by either party or by operation of law without the prior written consent of the other party.
39. Currency. All monetary amounts quoted herein are in the currency used in Schedule A.
40. Interpretation. When the context so requires, the singular will be read as the plural, and vice versa.
41. Enurement. This Agreement will enure to the benefit and be binding upon LuminUltra, its successors and permitted assigns; and the Customer and the Customer’s successors and permitted assigns.
42. Definitions. The following definitions shall apply throughout this Agreement:
a. Agreement. Shall mean this agreement as between LuminUltra and the Customer, including any related schedules.
b. Confidential Information. Shall mean all non-public, proprietary or confidential information of the disclosing party, in oral, visual, written, electronic or other tangible or intangible form, whether or not marked or designated as “confidential”,
c. Force Majeure Event. Shall mean (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labour stoppages or slowdowns or other industrial disturbances; (i) shortage of adequate power or transportation facilities; and (j) other similar events beyond the reasonable control of the party impacted by the Force Majeure Event.
43. Notices. Shall mean all notices, requests, consents, claims, demands, waivers and other communications under this Agreement.
44. Conflict. In the event of any conflict between the provisions of Schedule A and any other terms of this Agreement, the provisions of Schedule A shall prevail.
45. Governing Law. This Agreement is governed by the laws of the State of Maryland and the Parties submit to the exclusive jurisdiction of the courts of same.
46. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. This Agreement may also be executed by written notice of acceptance of the Agreement.