Instrument Lease Terms and Conditions

  1. ACCEPTANCE. 1.1 MSD hereby leases to Customer the Instruments listed on the quotation attached hereto (“Instruments”) or the term set forth therein (the “Lease”). Upon delivery, Customer shall hold the Instruments unpacked in a climate controlled environment (in accordance with the climate specifications provided by MSD) until a MSD certified technical specialist installs the Instruments and demonstrates to Customer that the Instruments are in working condition (“Installation”). Installation and demonstration of good working order is to be certified by Customer’s signature on the installation protocol. If Customer does not reject the Instruments in writing, Customer shall be deemed to have accepted the Instruments as of the date of Installation (“Installation Date”). 1.2 MSD shall, at its option and expense, either repair or replace properly rejected Instruments. MSD shall have the right to make substitutions and modifications in the specifications of any of the Instruments to be delivered hereunder provided that such substitutions or modifications will not materially and adversely affect overall performance. 1.3 If Customer issues a purchase order or any similar document it shall be for Customer’s internal purposes only and, thus even if acknowledged by MSD, the terms and conditions of that purchase order or similar document are expressly rejected by MSD and shall have no effect on the terms and conditions of this Lease which shall continue unaltered and unaffected.


  2. PRICE AND PAYMENT. Quoted prices are exclusive of all foreign, federal, state, municipal and other governmental sales, use and excise taxes, fees and assessments and other like taxes or duties. Quoted prices are also exclusive of all transportation, insurance, customs charges, special packaging or shipping instructions and handling required to comply with manufacturer’s specifications, any charges due as a result of complying with applicable U.S. Department of Transportation or other regulations, or to meet Customer requirements. Payment in full is due and payable thirty (30) days after the date set forth on the invoice provided by MSD to Customer (“Invoice Date”). All invoices, including for Instruments shipped outside of the United States, are payable in United States currency. MSD reserves the right to (a) assess a service charge not exceeding the lesser of 1.5% per month (or portion thereof) (equivalent to eighteen percent (18%) per annum) or the maximum amount permitted by applicable law on invoiced amounts not paid within thirty (30) days of Invoice Date, with interest to accrue monthly until full payment is received, and (b) at MSD’s option, enforce its rights pursuant to Section 12 below. In the event of default by Customer, MSD may decline to make further shipments in addition to and without affecting its other rights and remedies.


  3. RISK OF LOSS, SHIPMENT AND DELIVERY. Delivery of the Instruments will be made F.O.B. Customer’s facility. Title for Instruments and software embedded in the Instruments and any other accompanying software (individually and collectively, the “Software”) shall not pass to Customer at any time; provided, however, that Customer shall be responsible for, and bear the entire risk of loss, theft, destruction or damage to, the Instruments upon delivery of the Instruments to Customer’s facility. Such liability for destruction of or damage to the Instruments includes, without limitation, damage as a result of the use of reagents not supplied by MSD. All delivery dates are estimates only and MSD will not be liable for damages for delay in delivery.


  4. TITLE, LEASE AND LICENSE. Customer acknowledges the Instruments, components of the Instruments, and methods of making and using the Instruments are protected by “Intellectual Property Rights,” which, as used herein means any and all common law and statutory proprietary rights, including patent rights (including method patents), trademark rights, trade secret rights, rights of copyright, and any other intellectual property rights and equivalent and similar forms of protection, whether registered or unregistered, as well as the applications for registration and the right to apply for registration of any of these rights, in all cases existing from time to time under the intellectual property laws of the United States, any state or foreign jurisdiction or international treaty regime that are (a) incorporated or embodied in or that protect the Instruments and (b) owned by MSD or its affiliates. MSD hereby grants to Customer, under the Intellectual Property Rights, a limited, non-exclusive, non-transferable license to use the Instruments in accordance with the terms and conditions of this Lease. MSD is and shall, at all times, remain the sole and exclusive owner of the Instruments. MSD and its affiliates are and shall, at all times, remain the sole and exclusive owners of all Intellectual Property Rights. The Software is subject to the terms, conditions, and limitations of the license included with the Software. CUSTOMER SHALL HAVE NO RIGHT, TITLE OR INTEREST TO THE INSTRUMENTS, OR TO ANY INTELLECTUAL PROPERTY RIGHTS INCORPORATED INTO THE INSTRUMENTS, EXCEPT AS EXPRESSLY SET FORTH ABOVE. Customer agrees that it shall not attempt to, or otherwise, sell, pledge, transfer, loan, or rent the Instruments to third parties, or remove or obscure any markings of MSD’s ownership. Customer further agrees that it will keep the Instruments free and clear of all claims, liens and encumbrances. Customer and MSD intend that this arrangement constitutes a true lease and not a financing arrangement for the Instruments. Customer grants a security interest in all rights that Customer may have in the Instruments, and in insurance proceeds thereof, to secure MSD’s rights as a secured creditor under the Uniform Commercial Code. Customer will execute all documents and take all other actions to perfect MSD’s security interest in the Instruments.


  5. USE OF INSTRUMENTS AND REPORTING. 5.1 Customer agrees that the Instruments are to be used solely in the conduct of research and in their intended manner, and are not to be used for any other purpose, including without limitation, for human or veterinary diagnostic or treatment purposes and will not be used with reagents or any other consumables that are not purchased by Customer from MSD. Customer shall not make any addition, subtraction or alteration affecting any of the Instruments or change the location of any of the Instruments without MSD’s prior written consent. Customer agrees not to disassemble, modify, reverse engineer or service the Instruments in any way and that the Instruments will be in a secure location at all times. In addition, Customer agrees not to reproduce, modify, create derivative versions of, reverse engineer or decompile any Software. Customer agrees that it shall hold and utilize the Instruments for the entire term of this Lease. 5.2 Customer agrees to provide MSD with regular oral and written reports regarding the performance of the Instruments and assays conducted thereon, in the time and manner as reasonably requested by MSD. Customer agrees that MSD shall be permitted to use information from the reports, as well as general, non-confidential information about Customer’s participation in the Lease program in sales and marketing materials and/or presentations.


  6. COMPLIANCE WITH LAWS. Customer shall comply with any and all applicable foreign, federal, state or local laws, regulations and ordinances, including but not limited to safety regulations.


  7. CONFIDENTIAL INFORMATION. Customer shall treat as confidential all information and materials supplied by MSD marked as "confidential or "proprietary," including all information necessary for the proper testing and operation of the Instruments and any other information or materials which by their nature Customer should reasonably know are confidential (collectively, the "Confidential Information"). Customer agrees to abide by the terms of any markings and shall not remove any markings from the Instruments. Customer covenants and agrees that it will not divulge, disclose, or in any way distribute or make use of such Confidential Information (except as explicitly provided for herein). Customer shall not provide MSD with any confidential or proprietary information of a third party.


  8. PROPRIETARY RIGHTS. MSD retains for itself any and all proprietary rights arising out of the work done by MSD in connection with placing the Instruments with Customer and from any and all products developed by MSD as a result thereof. Customer acknowledges that MSD has devoted significant resources to the development of the Instruments. Accordingly, to the extent that Customer creates or develops any modification, enhancement, improvement or derivative to any of the Instruments, Customer hereby assigns, or shall cause to be assigned, any and all rights and interests, including all patent rights and copyrights, in and to such modification, enhancement, improvement or derivative to MSD. Customer hereby agrees to execute any additional documentation necessary to effectuate the foregoing, and shall cooperate with MSD’s efforts to protect any Intellectual Property Rights therein. No right to manufacture, have manufactured, copy, have copied, or sublicense is granted hereunder under any patent, copyright or other proprietary right of MSD. Customer may not use MSD’s trademarks, service marks, trade names, designs or logos without MSD’s prior written consent.




  10. LIMITATION OF LIABILITY. MSD’S LIABILITY FOR DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE INSTRUMENT THAT IS THE SUBJECT MATTER OF SUCH CLAIM DURING THE TERM OF THIS LEASE IN WHICH ANY ALLEGED BREACH OCCURS. IN NO EVENT SHALL MSD BE LIABLE FOR LOSS OF USE OF THE INSTRUMENT OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, FUNDAMENTAL BREACH OR OTHERWISE, EVEN IF MSD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Customer agrees that MSD will not be liable for any claim or demand against Customer by any other party, including without limitation, any claim based on the use or misuse of any of the Instruments. The parties agree that the above disclaimer of warranty and limitation of liability form an essential basis of the bargain between the parties and MSD has set its prices in part based on such disclaimer and limitation. The disclaimer of warranty and limitation of liability shall be enforceable even if all other remedies fail of their essential purpose.


  11. INSURANCE. Customer shall maintain at its expense, fire, theft and comprehensive (all risk) insurance on the Instruments in an amount not less than the full replacement value of the Instruments and reasonable public liability and property damage insurance. Such insurance must name MSD as an additional insured party and Customer shall furnish MSD, upon request, with certificates of insurance evidencing such insurance. The insurance policies shall not be altered or canceled to MSD’s detriment without MSD’s written permission.


  12. TERM AND TERMINATION. 12.1 The term of this Lease shall commence on the Installation Date and shall expire at the conclusion of the usage period set forth in the relevant quotation (“Usage Term”). Notwithstanding the foregoing, the parties may mutually agree in writing to extend the Usage Term. 12.2 In any one or more of the following events of default, Customer shall immediately pay to MSD the full amount of any payment obligations to MSD and MSD shall have the right, by written notice, to immediately terminate MSD’s obligations hereunder and take possession of the Instruments: (a) in the event Customer makes a general assignment for the benefit of creditors, transfers all or substantially all of its assets to a receiver or a trustee in bankruptcy, a bankruptcy or similar proceeding is commenced by or against Customer and such proceeding is not dismissed within thirty (30) days; (b) upon failure of Customer to pay when due any sums payable if nonpayment is not cured within ten (10) days after receipt of written notice from MSD; or (c) upon failure of Customer to perform any of its obligations hereunder (other than the payment of money which is addressed in Section 12.2(b) above and Section 12.3 below), if such default continues for a period of fifteen (15) days after receipt of notice of default from MSD. If at any time Customer’s financial condition is unsatisfactory to MSD (i) the terms of credit may be changed or withdrawn by MSD or (ii) MSD may reclaim the Instruments. 12.3 If Customer fails to pay any amount when due, and such nonpayment is not cured within ten (10) days after receipt of written notice from MSD, MSD may at its option and without limiting any other remedies available to it, suspend further shipments and services, reclaim the Instruments, and no forbearance, course of dealings, or prior payments shall affect this right. MSD shall have all legal and equitable rights and remedies available to it under this Lease and applicable law, including but not limited to those provided by the Uniform Commercial Code of the State of Maryland. Customer hereby grants MSD the right to enter Customer’s premises, with or without legal process, for the purpose of disabling and/or removing the Instruments. 12.4 Upon notice to Customer, MSD shall have the absolute right to terminate this Lease without cause and for any reason, without penalty, at any time prior to the delivery of the Instrument.


  13. EFFECT OF TERMINATION OR EXPIRATION. Upon termination or expiration, Customer shall hold, on behalf of MSD and in a reasonable manner, the Instruments and shall cooperate with MSD in arranging for return delivery of such Instruments to MSD. MSD is authorized to enter upon any of Customer’s premises, with or without legal process, to take possession of and remove the Instruments.


  14. MISCELLANEOUS. All notices required to be given under this Lease must be in writing and sent certified mail, return receipt requested, or by nationally recognized overnight courier. Notices shall be deemed given on the date actually received. This Lease shall not be amended or modified, nor shall any waiver (by action or inaction) of any right be effective unless in writing signed by both parties. This Lease may not be assigned or transferred (including by operation of law) by Customer, in whole or in part, without the prior written consent of MSD. This Lease shall be governed by and construed in accordance with the laws of the State of Maryland, excluding its conflict of laws provisions. Customer hereby irrevocably consents to venue and jurisdiction in the State of Maryland. The parties hereby expressly disclaim the applicability of the U.N. Convention on Contracts for the International Sale of Goods. If either party is impeded in fulfilling its obligations hereunder by circumstances beyond its reasonable control, including but not limited to, acts of God, fire, war, and delays in deliveries from suppliers, the impediment shall be considered a Force Majeure and the party shall be exempted from liability for delays. Each of the terms and conditions of this Lease shall be deemed separate and the invalidity or unenforceability of any provision shall not affect any other provision. The parties agree that there are no third party beneficiaries to this Lease. Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13 and 14 shall survive the expiration or termination of this Lease. This Lease and any license included within the Software contain the entire agreement with respect to the Instruments and shall exclusively govern the parties’ rights and obligations thereto, and Customer has not relied on any representations or statements made by MSD prior to the entering into this Lease. MSD hereby rejects any different or additional terms previously or hereafter proposed by Customer, none of which shall be effective unless embodied in a writing signed by an authorized representative of MSD. For avoidance of doubt, sales and customer and technical support representatives of MSD have no authority to make any representations not included herein, and any such representations should not be relied on by Customer. Section headings contained in these terms are for convenience of reference only, shall not be deemed to be a part of this Lease for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.


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