Terms & Conditions
Terms and Conditions
1. General: Entire Agreement
A. The sale of instrument(s), consumable(s), reagent(s), software or service part(s) (collectively hereinafter referred to as the "Product(s)") or provision of services in support of Products (the "Service(s)") by Molecular Devices (the "Seller") to the party purchasing the Products (the "Buyer") shall be governed by these terms and conditions.
B. Seller's offer to sell the Products to Buyer is expressly limited to Buyer's acceptance to these terms and conditions. Any of the following constitutes Buyer's unqualified acceptance of these terms and conditions:
- Issuance or assignment of a purchase order for the Products,
- Acceptance of any Product under the purchase order, or
- Payment for any of the Products under the purchase order.
C. Additional or different terms or conditions proposed by Buyer (including any additional or different terms provided in a purchase order) shall be void and of no effect unless specifically accepted in writing by Seller.
D. This Agreement shall be the exclusive agreement between the parties for the Products and Services, subject to the terms and conditions herein. Any prior or contemporaneous understandings, agreements, and representations, oral or written, are superseded by these terms and conditions. No modification to these terms and conditions shall be valid unless in writing and signed by Seller.
E. Agents and sales representatives of Seller have no authority to make any representations not included herein, and any such representations should not be relied on by Buyer.
Buyer acknowledges that any software programs included with the Products (the "Software") are licensed to Buyer under the terms and conditions of the click-through license agreement provided with the Software and that title to the Software (or any copies thereof) is not transferred to Buyer. As used herein, the term "sale" or "sold" in connection with the Software means sale of a license to use the Software.
The Products and other items or Services covered by this Agreement shall be sold and invoiced at the prices listed on the quotation, website or published price list. Prices do not include sales, excise, use or other taxes now in effect or hereafter levied by reason of this transaction. Buyer will pay and indemnify and hold Seller harmless from all such taxes.
4. Payment Terms
A. Payment terms are net thirty (30) days from date of invoice. Seller reserves the right to require alternative payment terms, including, without limitation, site draft, letter of credit or payment in advance.
B. If payment is not received by the due date, a late charge will be added at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date thereof.
C. All payments will be made as follows.
All checks should be sent to:
2680 Collections Center Drive
Chicago, IL 60693
All payments by wire transfer should be submitted to:
Bank of America
San Francisco, CA
Under Swift B of A US65
For Credit of: Molecular Devices
Routing and Transit No.: 121000358
Final Account No.: 1493-6-04706
By Order of: "Sending Company Name"
D. If Buyer is delinquent in paying any amount owed to Seller by more than ten (10) days, then without limiting any other rights and remedies available to Seller under the law, in equity, or under the Agreement, Seller may (i) suspend production, shipment or deliveries of any or all Products purchased by Buyer, or (ii) by notice to Buyer, treat such delinquency as a repudiation by Buyer of the portion of the Agreement not then fully performed, whereupon Seller may cancel all further deliveries and any amounts unpaid hereunder shall immediately become due and payable. If Seller retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including attorney's fees and expenses, shall be payable by Buyer. Buyer hereby represents to Seller that Buyer is now solvent and agrees that each acceptance of delivery of the Products sold hereunder shall constitute reaffirmation of this representation at such time.
5. Purchase Money Security Interest
Seller reserves a purchase money security interest in the Products in the amount of the purchase price of such Products to secure Buyer's obligations hereunder. Buyer appoints Seller as its agent and attorney-in-fact to execute any financing statements under the Uniform Commercial Code and any appropriate amendments thereto on Buyer's behalf which Seller deems necessary to protect Seller's interest in the Products.
A. Seller will use commercially reasonable efforts to comply with shipping instructions provided by Buyer. In the absence of any specific shipping instruction, Seller will ship by the method it deems most advantageous. Transportation charges will be charged "collect" to Buyer or subsequently invoiced to Buyer by Seller. When special or export packaging is required, the cost of the same, if not set forth on the invoice, will be separately invoiced.
B. Seller may make delivery in installments and may render a separate invoice for each installment. Each installment shall be deemed a separate sale. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept delivery of remaining installments. Any delivery not in dispute shall be paid for on the due date, as provided in this Agreement, without any offset, regardless of controversies relating to other delivery or undelivered products.
C. All Products shall be suitably packed for air and ground shipment, unless otherwise requested by Buyer and agreed to in writing by Seller.
7. Title, Risk Of Loss, Insurance
Unless stated otherwise by Seller, all shipments will be EXW (Ex Works) (as defined in Incoterms 2000) Seller's shipping facility, if destination of delivery is outside the United States, and F.O.B. (Free on Board) (as defined in U.C.C. Section 2-319) Seller's shipping facility, if destination of delivery is within the United States. Title to each shipment of the Products sold hereunder and risk of loss thereon shall pass to Buyer when Seller or its agent tenders such shipment to the carrier, but such shipment shall remain subject to Seller's rights of stoppage in transit and of reclamation.
Buyer or Buyer's agent may inspect the Products at Seller's place of manufacture. Buyer shall accept any tender of the Products by Seller which substantially conforms to the description of the Products set forth herein. Buyer shall be deemed to have irrevocably accepted any Product and, subject to Section 13, Buyer's right to reject such Product shall cease, unless Buyer gives to Seller notice of rejection in writing: (a) in the case of defects discoverable through inspection, within ten (10) days after delivery to the destination specified in Buyer's purchase order, or (b) in the case of defects not discoverable through inspection, within twenty (20) days after delivery to the destination specified in Buyer's purchase order. Buyer's notice must specify the nature of the defect or grounds for the rejection in reasonable detail. Buyer's right to inspect and reject any defective Product as described in this Section 8 does not apply to any Replacement Parts (as defined in Section 13). Buyer must obtain a return material authorization ("RMA") number from Seller prior to returning any defective Product. Buyer's return shall not be accepted at Seller's facility without a RMA number.
Seller may, at its discretion, accept the return of a purchased Product within twenty (20) days of shipment from Seller. All returns must be in original packaging and unopened and must display a valid RMA number provided by Seller. Buyer is responsible for paying a twenty-five percent (25%) restocking fee and all return shipping and insurance charges. Buyer assumes all liability for any damage that occurs on return shipment to Seller. For greater clarity, purchased consumables (the "Consumable(s)") or reagents (the "Reagent(s)") may not be returned by Buyer.
10. Force Majeure
Seller shall not be liable, directly or indirectly, for any delay or failure in performance of any obligation under this Agreement, including any delivery obligation, where such delay or failure arises or results from a cause beyond Seller's reasonable control, or beyond the reasonable control of Seller's suppliers or contractors, including, but not limited to strike, boycott or other labor disputes, embargo, governmental regulation, inability or delay in obtaining materials, acts of God, war, earthquake, fire, or flood. In the event of such force majeure, the time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby, provided that Seller notifies Buyer of the nature and duration of such force majeure event.
11. Limitation of Liability
IN NO EVENT WILL SELLER BE RESPONSIBLE OR LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOST PROFITS, OR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR CONTINGENT DAMAGES ARISING FROM OR RELATING TO THIS CONTRACT, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING FOR ANY LIABILITY ON ACCOUNT OF A CLAIMED DEFECT IN ANY PRODUCT DELIVERED BY SELLER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT PAID BY BUYER ON WHICH THE CLAIM IS BASED.
12. Choice Of Law, Venue, and Attorney's Fees
This Agreement is made in, governed by, and shall be construed in accordance with the laws of the State of California, without regard to any conflicts of law principles that would result in application of laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any legal action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement must be brought in any state or federal court located in Santa Clara County, California. Buyer and Seller expressly and irrevocably consents and submits to the jurisdiction of such courts for the adjudication of any claim and enforcement of any order emanating from such courts. The prevailing party in any legal action brought by one party against the other shall be entitled, in addition to any rights and remedies it may have, to reimbursement for its expenses incurred thereby, including court costs and reasonable attorney's fees and expenses.
A. Instrument Warranty. Seller warrants that the instrument (the "Instrument(s)") purchased from Seller will be free from defects in materials and workmanship during the applicable warranty period, provided that the Instrument has been operated at all times in accordance with the instruction manual and user guide by or under the direct supervision of a certified operator who has attended Seller's training course for the Instrument. If the Instrument is installed by an authorized field service engineer of Seller (the "Seller Representative"), then the warranty period for the Instrument ends twelve (12) months after the date of installation (as certified by Seller Representative) or thirteen (13) months after the date of shipment, whichever is shorter. If the Instrument is not installed by a Seller Representative, the warranty period for the Instrument terminates twelve (12) months after date of shipment. Seller will provide field service for drug discovery Products under warranty, and will provide depot service for bioresearch Products under warranty. Buyer may purchase an upgrade to field service for some bioresearch Products.
B. Instrument Accessory Warranty. Seller warrants that the option, accessory or media on which a copy of the software is placed (each hereinafter referred to as an "Instrument Accessory") will be free from defects in materials and workmanship during the applicable warranty period. If an Instrument Accessory is acquired at the time the Instrument is purchased, then the warranty period for the Instrument Accessory will be the same as the warranty period for the Instrument. If an Instrument Accessory requires installation after the Instrument is purchased, but during the warranty period of the Instrument, then the warranty period for the Instrument Accessory will be the greater of (i) the remaining warranty period for the Instrument, or (ii) the lesser of ninety (90) days from the date of installation of the Instrument Accessory or one hundred and twenty (120) days from the date of shipment of the Instrument Accessory. If an Instrument Accessory requires installation after the warranty period for the Instrument has expired, the warranty period for the Instrument Accessory will be the lesser of ninety (90) days from the date of installation of the Instrument Accessory or one hundred and twenty (120) days from the date of shipment of the Instrument Accessory. If an Instrument Accessory that does not require installation is acquired after the Instrument is purchased, but during the warranty period of the Instrument, then the warranty period for the Instrument Accessory will be the greater of (i) the remaining warranty period for the Instrument, or (ii) ninety (90) days from the date of shipment of the Instrument Accessory. If an Instrument Accessory that does not require installation is acquired after the warranty period for the Instrument has expired, the warranty period for the Instrument Accessory will be ninety (90) days from the date of shipment of the Instrument Accessory.
C. Instrument Service Parts Warranty. Seller warrants that the Instrument service parts (the "Replacement Part(s)") purchased from Seller will be free of defects in materials and workmanship, only if such parts are installed by Seller Representative. The warranty period for the Replacement Part is the greater of (i) the remaining warranty period of the Instrument, or (ii) ninety (90) days from the date of installation of the Replacement Part.
D. Software Warranty. Seller warrants that the Software purchased from Seller will be free from defects in materials and workmanship during the applicable warranty period, provided that the Software has been operated at all times in accordance with the instruction manual and user guide by or under the direct supervision of a certified operator who has attended Seller's training course for the Software. If the Software is installed by an authorized Seller Representative, then the warranty period for the Software begins upon installation of the Instrument and ends twelve (12) months after the date of installation (as certified by Seller Representative) or thirteen (13) months after the date of shipment, whichever is shorter. If the Software is not installed by a Seller Representative, the warranty period for the Software terminates twelve (12) months after date of shipment.
E. Consumable and Reagent Warranty. Seller warrants that the Consumables and Reagents purchased from Seller will be free from defects in materials and workmanship during the applicable warranty period, provided that the Consumable or Reagent has been used at all times in accordance with the instruction manual and user guide. Each Consumable and Reagent is shipped with documentation stating specifications and other technical information. Seller's Consumables and Reagents are warranted to meet or exceed the stated specifications. Sellers' sole obligation and the Buyer's sole remedy are limited to replacement of the Consumable or Reagent free of charge in the event that the Consumable or Reagent fails to perform as warranted. The warranty period for the Consumable or Reagent ends six (6) months after the date of shipment.
F. Warranty Exclusion. The warranties provided above and the remedies provided below will not apply to any Product if: (i) Seller determines that a problem is caused by accident, abuse, misuse, negligence, misapplication, fire, earthquake, flood, other force majeure event, failure of electrical power, the use of unauthorized parts or reagents, or unauthorized repairs or modifications; (ii) Seller determines that a problem is caused during or as a result of shipment or relocation; (iii) Seller's serial number has been removed or defaced from the Product; or (iv) a problem arises from or is based on Seller's compliance with Buyer's specifications
G. Remedy. For any breach of the warranties provided in this statement, Seller will, at its own expense and option, and as its sole obligation, and as Buyer's exclusive remedy, (a) repair or replace any defective Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent if Buyer notifies Seller during the applicable warranty period and Seller determines that the Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent is defective and is covered by the warranty; or (b) if Seller determines that it is unable to repair or replace the defective Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent, refund the purchase price paid by Buyer for the defective Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent. Seller is not required to repair, replace or refund any defective Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent if Buyer fails or refuses to certify to the Seller in writing that the Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent has been appropriately decontaminated and cleaned and is safe for handling by Seller personnel (the "Clearance Certificate"). The warranty period for the repaired or replaced Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent will not exceed the warranty period for the defective Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent. The warranty period for any Replacement Parts, which may be new, remanufactured or refurbished at Seller's sole discretion, will not exceed the warranty period for the defective Instrument or Instrument Accessory.
H. Warranty Disclaimer. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
I. Additional Disclaimer. Any sample or model of the Product(s) used in connection with this Agreement is for illustrative purposes only, is not part of the basis of this Agreement, and is not to be construed as a warranty that the Products will conform to the sample or model. No affirmation of fact or promise made by Seller, or Seller Representative whether or not in this Agreement, shall constitute a warranty that the Products will conform to the affirmation or the promise.
This Agreement and Buyer's rights hereunder may not be assigned to any third party by Buyer except with the prior written approval of Seller. Any assignment of this Agreement or any rights hereunder in violation of this Section will be null and void.
Waiver by Seller of any provision of this Agreement or breach by Buyer on any provision of this Agreement shall not be deemed a waiver of future compliance with this Agreement, and such provision, as well as all other provisions of this Agreement, shall remain in full force and effect.
16. Compliance with Law
A. Buyer agrees to comply with all applicable foreign, U.S., state, and local laws, rules, and regulations relating to this Agreement and the Products including the laws, rules, and regulations of the United States which restrict the export and re-export of commodities and technical data of United States origin, including the Products.
B. Furthermore, Buyer shall not resell any Product, and Seller shall have no obligation to sell any Product to Buyer, to or for use of any ultimate purchaser with which Seller could not deal under the laws and regulations of the United States, including, without limitation, the regulations of the United States Departments of Commerce, Defense, State and Treasury. Buyer further agrees to immediately transmit to Seller any information which may come to its attention concerning violation of such regulations by Buyer's customers.
C. Buyer will defend, indemnify, and hold harmless Seller from and against any violation of any laws, rules or regulations by Buyer or any of its agents, officers, directors, or employees in violation of this Section.
17. U.S. Government End Users
The Products are "commercial items," as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 and is provided to the U.S. Government only as a commercial end item. Any technical data provided with such Products is commercial technical data as defined in 48 C.F.R. 12.211. Consistent with 48 C.F.R. 12.211 through 12.212, 48 C.F.R. 227.7202-1 through 227.7202-4, and 48 C.F.R. 252.227-7015, all U.S. Government End Users acquire the Products with only those rights set forth herein.
18. Service Agreement
Buyer is covered by this service agreement ("Service Agreement") if Buyers Instrument or Software is under warranty or Buyer has purchased Services, including a maintenance and support contract. Buyer may purchase annual maintenance and support services ("Service Plan") for any Product in accordance with the Service Agreement provided that Seller generally offers such services. Seller may, at its discretion, accept or reject Buyer's purchase order for Service(s).
1. Services. Subject to the terms and conditions herein, Seller will use commercially reasonable efforts to provide to Buyer the following Services for the Product:
a) diagnosis and repair or any malfunction resulting from and traceable to defects in materials and workmanship of Seller; and
b) software maintenance and support as further described in Section 6 below.
Subject to Buyer's payment of the fees for the Services, Seller will be responsible for all costs incurred in providing the Services including labor and materials, shipping and travel expenses, except as otherwise provided herein. Seller shall have the right to determine in its sole discretion what corrective action Seller will perform to fix any malfunction in the Product. Seller may subcontract the Services to a third party contractor provided that Seller will be responsible for the third party contractor's compliance with the terms herein.
Seller, provides Services for the Products in accordance with the following requirements:
a) Seller's Products are removed and decontaminated from biohazardous Buyer's location;
b) Entry into Biosafety level ("BSL") 4 Buyer location by Seller Representative is not permitted for any purpose;
c) Entry into BSL 3 Buyer location is permitted and Services are provided, with confidentiality, when the Buyer;
i. justifies that removal of the Product from the Buyer location is not feasible,
ii. provides evidence of decontamination, when asked, for Products that require Service,
iii. provides a list of recommended inoculations available against the biohazardous location materials,
iv. provides information about hazards in the location,
v. provides instructions for safe entry into the location,
vi. provides instructions for fire, exposure or spill and other potential emergencies,
vii. provides appropriate safety equipment in good condition, with acceptable fit and with reasonable instructions for use;
d) Waivers are not signed before entry or visit to any biohazardous Buyer location; and
e) Seller Representatives retain the right to refuse Services until the above requirements are met to the satisfaction of the Seller Representatives who are trained to have reasonable safety expectations.
Buyer shall reference the applicable contract number as shown on Seller's quotation for the Services on all purchase orders submitted by Buyer to Seller.
2. Replacement Part(s). As part of the Services provided under warranty or Service Plan, Seller will provide, free of charge, Replacement Parts for any defective or damaged parts due to defects in materials and workmanship. Seller will not provide, free of charge Consumables (e.g. microplates, cuvettes, spectratest plates, lamps, patch plates, water, and air filters) or Reagents. Buyer may purchase Consumables and Reagents from Seller. Replacement Parts may be new, remanufactured, or refurbished at Seller's sole discretion. Any Replacement Parts that have been replaced will become the property of Seller.
3. Response Time and Return Procedure. Buyer may contact Seller via telephone or email to report any malfunction of the Product, during the hours of 8:00 a.m. and 5:00 p.m., Pacific Standard Time ("PST"), Monday through Friday, excluding holidays. A list of standard holidays will be provided to Buyer upon request. Seller will make commercially reasonable efforts to acknowledge receipt of a Service request by phone within one (1) hour, and by email within twenty-four (24) hours. All Service requests from Buyer made under warranty or Service Plan will receive preferential consideration over Service requests from other buyers that are not under existing warranty or Service Plan.
For Service requests under depot service, if the Service request cannot be resolved over the telephone, Seller will fax or email a Service request package, containing a Service request number, clearance forms, and if applicable, customs forms to Buyer within twenty-four (24) hours thereafter. Upon receiving the Service request package, Buyer will pack and ship the defective Product to Seller's facility in accordance with the instructions provided by Seller. For Products under an existing warranty or Service Plan for depot Services, Seller will be responsible for the cost of shipping the defective Product to Seller and the cost of shipping the repaired or replaced Product to Buyer, but not the insurance cost. Buyer will have the option to purchase insurance.
For Products that are not under an existing warranty or Service Plan for depot Services, prior to the shipment of a Product to Seller, Buyer shall place a purchase order ("PO") with Seller for the amount equal to the estimate stated in Seller's quotation for the Service. The PO must reference the instrument type and serial number. If the actual cost of the Services (parts, labor and shipping) is less than the estimate, Buyer will be billed the actual cost of the Services without further communication. If the cost of the Services is determined to exceed the estimate, Seller shall contact Buyer before any further work is done. If Buyer wishes to continue with the Services, Buyer shall amend the PO to equal the revised estimate for the Services as quoted by Seller. If Buyer does not wish to proceed with the Services based on such estimate, the Product will be returned to Buyer and Buyer shall be invoiced for and shall pay the minimum depot service fee according to Seller's then current list price as quoted by Seller.
For field Service requests under warranty or field Service Plan , if the Service request cannot be resolved over the telephone, Seller will dispatch its Seller Representative. Seller will use reasonable efforts under the circumstances to provide Services as quickly as possible. The Service will be scheduled at a time mutually agreed upon by Seller and Buyer.
For Products that are not under an existing warranty or Service Plan for field Services, for field Service requests Seller will dispatch Seller Representative only upon receipt from Buyer of a PO for the amount equal to the minimum field service fee according to Seller's then current list price as indicated on Seller's quotation. If the cost of the Services is determined to exceed the minimum field service fee, Seller shall provide an estimate for such Services to Buyer before any further work is done. If Buyer wishes to continue with the Services, Buyer shall amend the PO to equal the estimate for the Services as quoted by Seller.
For Instruments that are under an existing warranty or Service Plan, Seller may, at its discretion and based on instrument availability, provide a loaner instrument(s) with equivalent functionality to Buyer, at no cost to Buyer, for use for Buyer's internal business purposes during such time as the Services for Buyer's Instrument(s) are performed. Buyer acknowledges that all right, title and interest in and to such loaner instrument(s) shall at all times remain with Seller, and Buyer shall return such instrument(s) to Seller upon the earlier of Seller's request or completion of Services for Buyer's respective Instrument(s).
4. Support Conditions. Seller's obligation to provide the Services is conditioned on Buyer: a) notifying Seller of any malfunction of the Product within a reasonable period of time; b) providing Seller all information relating to the malfunction; c) packing and shipping the defective Product (if the Product is depot serviced) to Seller's facility in accordance with Seller's instructions; d) providing access to the defective Product and Buyer's facility where the Product is located and informing Seller of any potential hazards which may be encountered while servicing the Product (if the Product is field serviced); and e) returning a completed and signed Clearance Certificate.
5. Service Exclusions. Seller is not obligated to provide the Services if any malfunction arises from or relates to: (a) improper installation of the Product; (b) neglect, misuse or abuse of the Product; (c) use of unauthorized parts, Consumables or Reagents, or removal of any parts; (d) repair, modification or alteration of the Product by anyone other than an authorized Seller Representative; (e) relocation of the Product; (f) failure of or erratic electrical power; or (h) fire, earthquake, flood, or other force majeure event. The Services do not include training in using, diagnosing, or repairing the Product, relocation of the Product, or any service other than those referred to herein. Seller may refuse to provide the Services with respect to any Product which has not been properly maintained or which cannot be decontaminated or cleaned to remove any hazardous material.
6. Software Support and Maintenance Services. The Software support and maintenance services include the following services:
i) Seller will answer technical questions concerning functions and features of the Software;
ii) Seller will provide error verification, analysis and corrective efforts for the Software; and
iii) Seller will provide, without charge, releases of the Software that Seller provides to Buyer to correct errors, fix bugs, or create minor improvements, incremental features, or enhancements of existing features (the "Update(s)") which Updates Seller will designate by a change in the number to the Update of the Software released during the term of this Agreement.
As used herein, a Software Update is designated by a change in the number to the right of the first or second decimal point. For greater clarity, Updates do not include those releases of the Software that provide substantial new features or additional functionality which Seller designates by a change in the number to the left of the first decimal point.
Buyer acknowledges that all reported errors may not be corrected. Any Update will be deemed part of the Software and will be used in accordance with the requirements and obligations in the license agreement for the Software.
7. Exclusions from Software Support. In addition to the exclusions provided in Section 5 above, Seller will not be obligated to provide the Software support services if (a) any error is caused by malfunction of any hardware (other than malfunction of any Product) used with the Software, (b) error or malfunction of any third party software used by Buyer either separately or in conjunction with Seller's Software, or (c) Buyer has failed to incorporate the latest Update previously released to Buyer.
8. Reinstatement Inspection. If the original warranty or previous Service Agreement for any Product has expired, a reinstatement inspection by Seller, which confirms that such Product has been properly maintained, will be required before Seller will provide the Services for such Product under this Agreement. If reinstatement inspection is required, Buyer will be separately billed for the costs for reinstatement inspection. The fees for Services do not include reinstatement inspection.
9. IP Ownership. As between Seller and Buyer, Seller will exclusively own all rights in and to any inventions, improvements, or technology created, developed, or made by any employee or contractor of Seller in connection with the performance of the Services.
10. Warranty and Disclaimer. Seller warrants that it will provide the Services at least in accordance with generally accepted standards prevailing in the instrument repair industry. Warranty claims must be made within ninety (90) days after Services are performed. EXCEPT AS PROVIDED HEREIN AND IN THE TERMS AND CONDITIONS OF SALE OF THE PRODUCT, SELLER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, THE PRODUCTS, AND THE REPLACEMENT PARTS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SELLER'S SOLE LIABILITY AND RESPONSIBILITY UNDER THIS SERVICE AGREEMENT AND ANY UNDERLYING SERVICE PLAN FOR BREACH OF WARRANTY IS RE-PERFORMANCE OF THE SERVICES WITHIN A REASONABLE TIME OR RETURN OF THE FEE PAID FOR THE DEFECTIVE SERVICES AT SELLER'S OPTION. THESE ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY.
11. Limitation of Liability. IN NO EVENT WILL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST PROFITS, ARISING FROM OR RELATING TO THE SERVICES EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID FOR THE SERVICES HEREUNDER DURING THE CALENDAR YEAR WHEN THE INCIDENT GIVING RISE TO THE CLAIM TOOK PLACE. ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT.
12. Indemnity. Buyer will defend, indemnify, and hold Seller harmless from any and all claims, losses, damages, debts, settlements, costs, attorneys' fees, expenses and liabilities of any type whatsoever (collectively referred to as "Claims") arising from or related to any injury to employees or contractors of Seller caused by improper installation or use of a Product by Buyer, power supply used by Buyer with a Product, or any material processed by a Product. Seller will have the right to participate in or conduct the defense of such Claim with counsel of its own choice. Seller will use reasonable effort to promptly notify Buyer of any such Claim. No settlement of a Claim will be binding on Seller without its prior written consent.
13. Term and Termination. nless otherwise expressly stated by Seller in writing, including in the terms of the purchased Service Plan, the initial term of a Service Plan and this Agreement is one year, commencing on the date designated by Seller in its quotation or otherwise specified to Buyer. Either party may terminate a Service Agreement, effective immediately, if the other party commits a material breach of the terms and conditions herein and fails to cure such breach within thirty (30) days after receiving written notice thereof. If Seller terminates this Service Agreement as a result of Buyer's material breach, Seller will not be obligated to refund any portion of the fees paid for the Services. Buyer may terminate this Service Agreement by providing to Seller thirty (30) days prior written notice if Buyer trades in the Product to purchase another Product from Seller. In which event, Seller may apply a credit toward purchase of a Service Plan for the new Product equal to the prorated refund of the fees paid for the Services based on the remaining duration of the Service Agreement. Seller may terminate this Agreement if Buyer transfers the Instrument to another location. Sections 9, 10, 11, 12, 13, 14 and 15 will survive any termination or expiration of this Service Agreement.
14. Independent Contractor. The parties are acting hereunder as independent contractors and not as partners, agents, fiduciaries, or joint venturers. Neither party has the power or authority represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party.
15. Force Majeure. Any delay in the performance of any duties under warrnty or this Service Agreement (except for payment of fee owed) by either party will not be considered a breach if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or other event beyond the control of such party, provided that such party uses reasonable efforts to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.