L.A.B Terms and Conditions of Sale
The Detailed Terms and Conditions of all L.A.B Equipment Inc Product sales, service parts, software and related services are sold under the L.A.B Terms and Conditions of Sale stated below:
L.A.B Equipment, Inc., (“L.A.B Equipment”) and Buyer agree that the purchase and sale of Products and the licensing of Software (“Software”), where applicable, shall be in accordance with the following terms and conditions:
Prices are exclusive of all sales, use and like taxes. Any such tax L.A.B Equipment may be required to collect or pay upon the sale or delivery of Products or the licensing of Software where applicable, shall be paid by Buyer to L.A.B Equipment upon receipt of invoice.
Upon receipt of Buyer’s purchase order L.A.B Equipment will, by Acknowledgment, notify Buyer of the Scheduled Delivery Date. Delivery shall be EXW shipping point. Unless otherwise directed, L.A.B Equipment will ship collect by the most appropriate method, but by doing so shall not thereby assume any liability in connection with the shipment. If requested by Buyer, transportation and in-transit insurance charges will be prepaid and will be added to the invoice as a separate item. Title and risk of loss shall pass to Buyer upon delivery of the Products by L.A.B Equipment to the carrier.
If the purchase order includes installation supervision, L.A.B Equipment will install the Product(s) in any location provided Buyer (i) promptly notifies L.A.B Equipment of the receipt of the Product(s), (ii) has prepared a suitable installation site in accordance with L.A.B Equipment’s instructions, and (iii) unpacks and places the Product(s) at the installation site. Notwithstanding payment terms to the contrary, all outstanding payments shall become due and payable to L.A.B Equipment within thirty (30) days from Product(s) receipt if Buyer does not notify L.A.B Equipment of such receipt or if L.A.B Equipment is prevented by causes beyond its control from installing the Product(s) within thirty (30) days of receipt.
4. Software License Agreement
4.(a) License Grant
L.A.B Equipment agrees to grant, and Buyer (“Licensee”) accepts a non-exclusive, non- transferable license to use the Software on the following terms and conditions:
4.(a)(1) Licensee may use the Software on the CPU or system on which the Software is first installed. If the Software is to be installed by anyone other than L.A.B Equipment, Licensee shall advise L.A.B Equipment of the model number, serial number and location of the system prior to the Software being shipped by L.A.B Equipment.
4.(a)(2) Licensee shall not dispose of, give away, loan out, exchange, throw away, offer on a bureau basis, copy (except for a maximum of two archival copies for use on the designated CPU or system), sell, sublicense, lease, or otherwise disclose or transfer in whole or in part, the Software, or make it available for use by any third party. In the event Licensee transfers the CPU or system to a third party or otherwise disposes of it, Licensee agrees it shall first remove the Software from such CPU or system and return the Software and all copies thereof, to L.A.B Equipment.
4.(a)(3) L.A.B Equipment represents, and Licensee hereby acknowledges that the Software and updates of the Software contain confidential and trade secret information. Licensee shall not attempt to de-compile, disassemble or reverse engineer the Software. Licensee further agrees that it will use its best efforts to prevent de-compilation, disassembly or reverse engineering of the Software by any persons or other entity by securing and protecting each copy of the Software and update in a manner consistent with the maintenance of L.A.B Equipment’ rights and by taking appropriate action by instructions or agreement. Breach of the terms of this Paragraph 4 shall entitle L.A.B Equipment to immediately terminate this Software License Agreement.
Title and all proprietary rights to the Software and all copies thereof, shall be and remain with L.A.B Equipment or others from whom L.A.B Equipment has obtained a respective licensing right.
This License shall become effective on the date of delivery of the Software to Licensee and shall continue in full force and effect until the license for the Software is terminated as provided herein.
L.A.B Equipment shall have the right to terminate any license granted hereunder (i) if the license fee, if required, has not been paid, (ii) if Licensee fails to comply with any provision of this Software License Agreement, or (iii) if proceedings by or against Licensee under federal or state bankruptcy laws or an assignment or receivership for the benefit of creditors is instituted. Licensee agrees, upon notice of such termination, immediately to return or destroy the Software provided under such terminated License and all portions and copies thereof. If Licensee chooses to destroy the Software, Licensee shall provide to L.A.B Equipment written certification of such destruction (signed by an authorized officer) within ten (10) days of L.A.B Equipment’ notice of termination. Such termination shall not alter the obligations of Licensee under this Software License Agreement.
4.(e) Sublicense Agreements
Certain software furnished by L.A.B Equipment is provided under sublicense from third parties. Licensee agrees to execute any software sublicense agreement required by the third party.
5. Patents and Copyrights
L.A.B Equipment will defend or settle at its expense and will pay the costs and damages awarded against Buyer in any action brought against Buyer alleging that the L.A.B Equipment Product(s) sold or unmodified Software licensed pursuant hereto, or any of their parts manufactured by L.A.B Equipment, infringe a United States patent or copyright, provided that Buyer:
- Promptly notifies L.A.B Equipment in writing of such action,
- Provides L.A.B Equipment with all reasonable assistance for the defense or settlement of such action, and
- Grants to L.A.B Equipment sole authority and control for the defense or settlement of such action.
Upon final adjudication of Buyer’s liability in such action, L.A.B Equipment will, at L.A.B Equipment’s option and expense, either:
- Procure for Buyer the right to continue using such Product, Software or part, or
- Replace or modify such Product, Software or part so that it becomes non-infringing, or
- Remove such Product, Software, or part and refund to Buyer the purchase price, as depreciated, or license fee if applicable, and transportation
L.A.B Equipment shall not have any liability to Buyer and Buyer shall defend and hold L.A.B Equipment harmless against any expense, judgment, or loss if the alleged infringement is based on:
- The use of such Product, Software, or part with products not manufactured by L.A.B Equipment, or
- Any product(s) derived through the use of Software, which product(s) infringe any patent or copyright, or
- A.B Equipment’s compliance with Buyer’s designs, specification or instructions.
In no event shall L.A.B Equipment’s total liability to Buyer under this Paragraph exceed the sum paid to L.A.B Equipment by Buyer for the allegedly infringing Product or Software. The foregoing states L.A.B Equipment’s entire liability for patent or copyright infringement by such Product, Software or part.
6. Rescheduling Charge
6.(a) In the event Buyer requests a rescheduling of the Scheduled Delivery Date of a purchase order, and such request is accepted by L.A.B Equipment, or Buyer otherwise causes a rescheduling of such Scheduled Delivery Date of a purchase order, or any part thereof, within ninety (90) days prior to the Scheduled Delivery Date, Buyer agrees to pay to L.A.B Equipment as a rescheduling charge either, at L.A.B Equipment’s option, (i) ten percent (10%) of the list price of the rescheduled product, such charge having been agreed upon not as a penalty but as a result of the difficulty of computing actual damages, or (ii) an amount equal to L.A.B Equipment’s costs and expenses incurred due to such rescheduling.
6.(b) Buyer may not reschedule the Scheduled Delivery Date of any order or part thereof within thirty
(30) days prior to such Scheduled Delivery Date.
6.(c) More than one (1) rescheduling of the Scheduled Delivery Date of an order may, at L.A.B Equipment’s sole discretion, operate as a cancellation of the order subject to a cancellation charge.
7 Cancellation Charge
7.(a) In the event Buyer cancels or otherwise causes a cancellation of a purchase order, or any part thereof, within one hundred eighty (180) days prior to the Scheduled Delivery Date, Buyer agrees to pay to L.A.B Equipment as a cancellation charge either, at L.A.B Equipment’s option, (i) fifty percent (50%) of the list price of the canceled Product, such charge having been agreed upon not as a penalty but as a result of the difficulty of computing actual damages, or (ii) an amount equal to the cost of the work performed plus expenses.
7.(b) Buyer may be subject to an additional charge for the cancellation of Products containing custom features at any time after an order is received by L.A.B Equipment.
7.(c) Buyer may not cancel any order or part thereof within sixty (60) days prior to Scheduled Delivery Date.
8. Product Specifications
L.A.B Equipment reserves the right, without prior approval from or notice to Buyer, to make changes in the specifications of Products.
9. Force Majeure
L.A.B Equipment shall not be liable for any damages or penalty for delay in performance of its obligations hereunder or for failure to give notice of delay when such delay is caused by the elements, acts of God, delay in transportation, delay in delivery or performance by L.A.B Equipment’s vendors, shortages of materials or labor or any other causes beyond the reasonable control of L.A.B Equipment.
10. Limitations of liability
L.A.B EQUIPMENT SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF NOTICE HAS BEEN GIVEN OF THE POSSIBILITY OF SUCH DAMAGES.
Regardless of any disclosure made by Buyer to L.A.B Equipment of an ultimate destination of Products or Software, Buyer warrants that Buyer will not export, either directly or indirectly, any Product or Software without first obtaining any and all necessary approvals from the U.S. Department of Commerce or any other agency or department of the United States Government as required.
Buyer shall not assign this contract without prior written approval of L.A.B Equipment, and any attempt to assign any rights, duties or obligations hereunder without such approval shall be void.
Waiver of any breach or failure to enforce any term of this contract shall not be deemed a waiver of any other breach or right to enforce that may thereafter occur.
14. Additional Terms
All purchase orders are subject to acceptance by L.A.B Equipment and a contract between L.A.B Equipment and Buyer shall not be formed until L.A.B Equipment has accepted Buyer’s purchase order by forwarding an Acknowledgment to Buyer. Such contract shall constitute the entire agreement with respect to the subject matter hereof between L.A.B Equipment and Buyer and shall be governed by the laws of the State of Illinois. If any provision of this Agreement is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the parties hereto, and shall be enforceable, as though said invalid of unenforceable provision were not contained herein. L.A.B Equipment’s Standard Terms and Conditions of Sale shall prevail notwithstanding any different, conflicting or additional terms and conditions which may appear on any purchase order or form submitted by Buyer. Deviations from or additions to these terms and conditions shall not be valid unless in writing and executed by an authorized representative of L.A.B Equipment at its corporate offices.
LAB Equipment Inc. USA- 2019A