Terms & Conditions

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Copyright ©, 2010, Lucerna, Inc.^TM All Rights Reserved. “Lucerna Technology^TM ” and the Lucerna, Inc.^TM  logo are registered trademarks of Lucerna, Inc.^TM  All content contained in this website is property of Lucerna, Inc.^TM  and may be used only with the expressed written permission of Lucerna, Inc.^TM  All rights reserved.

Terms and Conditions of Sale

Thank you for your interest in purchasing products from Lucerna, Inc. (“Lucerna”, “we” or “us”). Unless otherwise agreed in writing by us, your purchase of our products is subject to the following terms and conditions (“Terms”):

1. Contract Terms. These Terms, and our written quotation or proposal, and any Limited Use Label License Agreement that accompanies our products (each a “LULL”) comprise the complete agreement (“Agreement”) between you, the purchaser of goods, and Lucerna.  You agree to accept and be bound by the Agreement by ordering products from us. This Agreement is the complete and exclusive contract between us with respect to your purchase of the products.  The Agreement between us is created when we accept your order, either by sending a written confirmation, or by shipping the product or otherwise initiating action to provide what you have ordered.
2. Price and Payment.
   • We may change our prices at any time without notice. Prices we quote you are valid for 30 days, unless we state otherwise in writing. Additionally, the price as shown in our quotation or proposal to you is subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of our original price quotation. If no price has been specified or quoted to you, the price will be the product price in effect at the time we accept your order.
   • Our product prices do not include any taxes (including VAT), duties, levies or other government fees that may apply to your order. If they apply, it will be your responsibility to pay them. If we pay them, we will add them to your invoice. If you claim any exemption, you must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
   • You are responsible for standard delivery and handling charges, if any. We will also add these charges to your invoice.
3. Payment.
   • We will invoice you for the product price and all other charges when we ship you the products. Unless we have agreed otherwise in writing, you will pay us within 30 days from our invoice date. Each order is a separate transaction, and you may not off-set payments from one order against another, or make any deductions or withholdings. We may require you to make full or partial payment in advance, or other security to our satisfaction, if we believe in good faith that your financial condition does not justify the payments terms otherwise specified. You will make all payments in U.S. Dollars.
   • If you are late in making payment, we may, without affecting our other rights: (A) suspend deliveries or cancel the Agreement; (B) reject your future orders; and/or (C) charge you a late-payment charge, from the due date until paid, at the rate of 1.5% per month, or, if less, the maximum amount allowed by law–which you must pay upon demand.
   • If we appoint a collection agency or an attorney to recover any unpaid amounts, you must pay all reasonable costs of collection, including all associated reasonable attorneys’ fees.
4. Delivery; Cancellation; Changes.
   • We will ship products to the U.S. destination you specify in your order, FCA our shipping point. We may, in our discretion, (a) make partial shipments and invoice each shipment separately; and/or (b) stop delivery of products in transit and withhold shipments in whole or in part if you do not pay us when due, or if you otherwise do not perform your obligations in this Agreement. Our shipping dates are approximate only, and we will not be liable for any loss or damage resulting from any delay in delivery, or from any failure to deliver due to any cause beyond our reasonable control. If we delay shipment because of a cause beyond our reasonable control, we may terminate the affected order, or reschedule the shipment, and we will do so within a reasonable period of time. You may not refuse delivery or otherwise be relieved of any obligations as the result of such delay. If our delivery of a product to you is delayed due to any cause within your control, we will place the delayed products in storage at your risk and expense and for your account.
   • Once you have placed your order, you cannot cancel it, unless we consent in writing, and you pay any applicable cancellation charges.
   • You may not change orders in process, except with our written consent and agreement as to an appropriate adjustment in the purchase price for the applicable products. You will not receive credit for products returned without our prior consent.
5. Risk of Loss and Title. Aside from the trade terms indicated above, products are delivered when we load them onto the commercial carrier at our facility. At this point you become responsible for risk of loss and damage.  Title to products will pass to you when we deliver the product to the carrier.
6. Regulatory. OUR PRODUCTS ARE FOR RESEARCH USE ONLY (RUO) AND ARE NOT FOR DIAGNOSTIC, CLINICAL, IN VITRO, EX VIVO OR IN VIVO THERAPEUTIC USES, OR ANY TYPE OF CONSUMPTION BY OR APPLICATION TO HUMANS OR ANIMALS.  We give no rights to use our products in any commercial application, including manufacturing, quality control, or commercial services (such as reporting the results of your activities for a fee or other consideration).  You must use our products in accordance with our instructions and accompanying documentation, including any LULLs. You are solely responsible for making sure that the way you use our products complies with applicable laws, regulations and governmental policies. You must obtain all necessary approvals and permissions you may need. It is solely your responsibility to make sure the products are suitable for your particular use. You acknowledge that our products have not been approved, cleared, or licensed by the United States Food and Drug Administration or any other regulatory entity whether foreign or domestic for any specific intended use, whether research, commercial, diagnostic, or otherwise.
7. Returns and Shortages. You may return a product that is damaged or defective on delivery, or correct any shortages, if you contact our Customer Services within 5 days after receiving the product. If you do not contact us within this 5-day period, we will deem the product accepted, but you will not lose any warranty rights.  Customer Services must authorize all product returns. If your product return is authorized, Customer Services will provide you directions regarding the return process. Customer Services may not authorize some items for return. To be eligible for product credit, a product must be authorized in writing for return and must arrive at our facilities in a condition satisfactory for resale. Any return not due to our error is subject to a restocking charge of $25 or 25% of the sale price—whichever is greater. We do not credit shipping charges. You may not return a product for credit more than 20 days after you receive it.
8. Limited Warranty and Disclaimers.
   • We warrant that each product delivered to you under this Agreement shall be free from defects in materials and workmanship for a period of one (1) year from the date of original purchase (“Warranty”). This Warranty extends to only the original purchaser of the new product from Lucerna or an authorized Lucerna dealer. This Warranty does not apply to damage or failure to perform resulting from misuse, neglect, abuse, failure to use in accordance with instructions, wear and tear, or breakage (except breakage resulting from manufacturing defects). We shall, in our discretion, either repair or take back and replace a Product not meeting the Warranty during the Warranty term, if you comply with our warranty instructions with respect to returns. If a defect becomes apparent during the Warranty term, you should contact us and provide a copy of the dated proof of original Repair or replacement of the product is your sole and exclusive remedy, and our only liability under the Warranty.
   • If we determine that products for which you requested warranty services are not covered by the Warranty, you will pay or reimburse us for all costs of investigating and responding to such request at our then prevailing time and materials rates.
   • EXCEPT FOR THE ABOVE WARRANTY, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR RELATING TO CUSTOM, USAGE OR TRADE. WE DO NOT WARRANT THAT THE PRODUCTS ARE ERROR- FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
9. Lucerna Indemnity.
   • We will defend and indemnify you against infringement damages finally awarded in any legal action brought by a third party against you to the extent that the action is based on a claim that our manufacture and sale of a product infringes any patent, copyright, trademark or other intellectual property right of such third party if we had actual knowledge of such intellectual property right and the actual infringement at the time of delivery of the product to you. This infringement indemnity does not apply to claims that arose based on (a) your failure to comply with the Agreement, (b) your failure to acquire any applicable rights from third parties, (c) products that we made, assembled or labeled in reliance upon your instructions, specifications, or other directions, (d) your use or resale of products, (e) modifications made by you or any third party; or (f) products originating from third parties.
   • Our infringement related indemnity obligations will be extinguished if we, at our option and expense, either: (a) secure for you the right to continue using the product; (b) substitute the product with another suitable product with similar functionality; or (c) in the event (a) and (b) are not practical, refund to you the amortized amounts you paid for the infringing product.
   • THIS INDEMNITY IS OUR ONLY LIABILITY TO YOU, AND YOUR ONLY REMEDY, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY OR IN CONNECTION WITH ANY PRODUCT.
   • As a condition to any of our indemnification obligations you must (a) notify us in writing, as soon as you become aware of any claim; (b) not admit any liability or take any other action in connection with the claim that could affect the defense; (c) allow us to solely control the defense or settlement of the claim; and (d) give us your reasonable information, co-operation and assistance.
10. Your Indemnity. You will indemnify, defend with competent and experienced counsel and hold us, including our parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, harmless from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) suffered by any of the foregoing entities or individuals to the extent arising from or in connection with (a) your or your agents’, employees’, representatives’ or contractors’ negligence or willful misconduct; (b) infringement or misappropriation of intellectual property rights caused by your use or sale of a product we supplied to you; (c) our compliance with designs, specifications or instructions you gave us; (d) use of a product in an application or environment for which it was not designed; (e) product modifications we did not make or approve in writing; (f) your failure to acquire any applicable third party rights; (g) your use of products other than in accordance with the documentation accompanying them; and (h) your breach of the Agreement (including your breach of a LULL).
11. Intellectual Property. As between you and us, we exclusively own all intellectual property rights relating to our products and services, including any software. Our sale of products to you grants you only a limited, nontransferable right under our intellectual property only to use the products you have bought from us for your internal research purposes in accordance with this Agreement. No right to transfer, distribute or resell our products or any of their components is conveyed expressly, by implication, or by estoppel.  You may not modify, create derivative of, or reverse engineer our products or their components.  Unless expressly permitted by us in writing, you will not modify, change, remove, cover or otherwise obscure any of our or our affiliates’ brands, trade or service marks on the products. Nothing in the Agreement limits our ability to enforce our intellectual property rights. 
12. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LUCERNA WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT YOU MIGHT INCUR UNDER THE AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS OR SERVICES, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, LUCERNA’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR ANY PRODUCT OR SERVICE, IS LIMITED TO THE AMOUNT YOU PAID TO US FOR THE PRODUCT OR SERVICE PURCHASED. HOWEVER, THESE PROVISIONS DO NOT LIMIT OUR LIABILITY THAT CANNOT BE LIMITED BY LAW.
13. Export Restrictions. You acknowledge that each product and any related software and technology, including technical information we supply you, including those contained in product documents (collectively “Items”), is subject to U.S. government export controls.  The export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. You must comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item.
14. Miscellaneous.
    • You may not delegate any duties nor assign any rights or claims hereunder without our prior written consent, and any such attempted delegation or assignment will be void.
    • The Agreement and performance under it will be governed by the laws of the State of New York, United States, without reference to choice of law provisions. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
    • Any litigation arising under this Agreement or any services or products provided by us shall be brought only in the courts situated in the State of New York and you consent to and confer personal jurisdiction upon such courts, and expressly waive any objections as to venue in any such courts.
    • We will not be responsible or liable for failing to perform our obligations under the Agreement to the extent caused by circumstances beyond our reasonable control. In certain situations, we may use our reasonable judgment and apportion products then available for delivery fairly among our customers.
    • Our failure to exercise any rights under the Agreement is not a waiver of our rights to damages for your breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement. No person other than you or us will have any rights under the Agreement. Headings are for convenience only and shall not be used in the interpretation of these Terms.
    • You agree to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions (including any gene sequences, oligo types or sequences) received from us as a result of discussions, negotiations and other communications between us in relation to our products or services.
    • Any notice or communication required or permitted under these Terms must be in writing and will be deemed received when personally delivered, or 3 business days after being sent by certified mail, postage prepaid, to a party’s specified address.
    • No waiver, consent, modification, amendment or changes to the terms of this Agreement will be binding unless in writing and signed by both of us. Our failure to object to terms contained in any subsequent communication from you will not be a waiver or modification of our Agreement.
    • The terms of your purchase order do not form a part of this Agreement and are rejected by both parties, and have no force or effect.