These terms and conditions (the “Agreement”) shall govern all purchases from Molecular Devices Shanghai Corporation (“Seller”) of services under a Seller’s maintenance and support service plan (“Service Plan”) or time and materials services relating to instruments and other equipment (“Products”), including maintenance, repair, installation, relocation or servicing of Products (collectively, “Services”) and set forth the agreement between Seller and the party purchasing the Services (“Buyer”) regarding the performance of such Services, unless other terms are specifically designated by Seller to apply to a specific service. 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 for 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;
- justifies that removal of the Product from the Buyer location is not feasible,
- provides evidence of decontamination, when asked, for Products that require Service,
- provides a list of recommended inoculations available against the biohazardous location materials,
- provides information about hazards in the location,
- provides instructions for safe entry into the location,
- provides instructions for fire, exposure or spill and other potential emergencies,
- 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 Representative 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 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 9:00 a.m. and 5:30 p.m., 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 four (4) hours, 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 courier an empty packing carton to Buyer within twenty-four (24) hours thereafter. Upon receiving the carton, 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, 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 execute the Seller’s quotation with signature stating the estimated amount due 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, Seller will complete the service without further communications with Buyer and bill to Buyer with the actual cost. If the cost of the Services is determined to exceed the estimate, Seller shall contact Buyer before any further work is done. If Buyer confirms to Seller that Buyer wishes to continue with the Services, Seller shall complete the Services accordingly. . 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. In each case, upon completion of Services, Buyer shall update the quotation to reflect the final amount due for the Services and bill to Buyer, Buyer shall execute the updated quotation with signature and company chop.
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 execution by Buyer of Seller’s quotation for the Service with signature for the amount equal to the minimum field service fee according to Seller’s then current list price. 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 confirms to Seller that Buyer wishes to continue with the Services, Seller shall complete Services accordingly. In each case, upon completion of Services, Buyer shall update the quotation to reflect the final amount due for the Services and bill to Buyer, Buyer shall execute the updated quotation with signature and company chop.
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 support and maintenance services for software programs included with the Products (the “Software”) include the following services:
- Seller will answer technical questions concerning functions and features of the Software;
- Seller will provide error verification, analysis and corrective efforts for the Software; and
- 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 IN THIS AGREEMENT , SELLER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, 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 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. PAYMENT TERMS. Payment terms are net 30 days from the date of invoice unless otherwise specified in the quotation issued by Seller to Buyer. 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. If Seller retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including reasonable attorney’s fees and expenses, shall be payable by Buyer. Prices do not include any taxes.
14. TERM AND TERMINATION. Unless 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 this 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 a 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 a 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 fees paid for the Services based on the remaining duration of the Agreement. Seller may terminate this Agreement if Buyer transfers the instrument to another location. Sections 9-18 will survive any termination or expiration of this Agreement.
15. 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.
16. ASSIGNMENT; NOTICES. Neither this Agreement nor any Service Plan may 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. Any notice to be given by either party to the other under this Agreement shall be in writing and mailed by certified or registered mail, delivered by express courier or hand delivered to such party to the address of the other party specified on the quotation or such other address as may be designated by the receiving party by providing notice to the other party pursuant to this Section.
17. FORCE MAJEURE. Any delay in the performance of any duties under this 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.
18. GENERAL. If any provision of this Agreement is unenforceable or invalid pursuant to any applicable law, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such unenforceable or invalid provision will be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions. This Agreement, together with Sellers's quotation regarding the Service Plan(s) or other services subject to these terms and conditions, and Seller's description of the services provided under the Service Plan purchased by Buyer, represents the entire agreement between the parties with respect to the subject matter herein and supersedes and entirely replaces any previous agreements between the parties with respect to the subject matter herein. Except as otherwise provided in this Agreement, in the event of an inconsistency between these terms and the terms appearing on Seller's quotation or other agreement signed by an authorized representative of Seller, the terms appearing on Seller's quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of this Agreement, and all other provisions of this Agreement shall remain in full force and effect. Additional or inconsistent terms proposed by Buyer (including in a purchase order) shall be void and of no effect unless they expressly reference a specific provision of this Agreement to be modified and such modification is accepted in writing by an authorized representative of Seller.