Instrument Services Terms and Conditions
- TOTAL SERVICE PACKAGES.
- Services. If Customer has purchased a Total Service Package, MSD will use its commercially reasonable efforts to provide during normal business hours maintenance and support services for the instrument(s) identified on the attached quotation (individually, “Instrument” and collectively, “Instruments”) within the timeframes indicated for the applicable service package after notification is received from Customer that such Instrument has failed to operate in accordance with the applicable product description. Depending upon the type of package purchased, MSD will also conduct one (1) or two (2) preventative maintenance visit(s) per twelve (12)-month period at the facility where the Instrument is located (each a “Customer Location”). In the event that there are multiple Instruments at the same Customer Location, MSD may conduct preventative maintenance for all such Instruments during the same visit.
- Fees. Fees for the Total Service Package will be invoiced annually in advance and are not refundable or pro-ratable, except as agreed in writing by MSD. If Customer requests any services outside of normal business hours, charges for those services may be invoiced after completion of such services at MSD’s then-current hourly fees.
- Term. The Total Service Package will continue in effect for the period set forth on the quotation attached hereto..
- Termination. In the event of a failure of Customer to pay any fees as provided herein, MSD may terminate the Total Service Package immediately upon written notice to the Customer. In addition, MSD shall have the right, in its sole discretion, to immediately terminate the Total Service Package, in whole or in part, upon written notice to Customer in the event that Customer (a) uses the Instruments for purposes other than research purposes, including without limitation, for human or veterinary diagnostic or treatment purposes (each a “Prohibited Use”); (b) copies the Instruments, in whole or in part, modifies or creates derivative versions of the Instruments, or disassembles, decompiles, or reverse engineers the Instruments (each a “Prohibited Action”); or (c) rents, leases, loans, sells, manufactures, distributes, disposes of, assigns, pledges, encumbers, sublicenses or otherwise transfers (whether with or without consideration or whether voluntarily or involuntarily) the Instruments (each a “Prohibited Transfer”).
- IQ/OQ/PQ SERVICES. If Customer has purchased installation qualification/operational qualification/performance qualification services (“IQ/OQ/PQ Services”) for an Instrument, MSD will use its commercially reasonable efforts to provide during normal business hours IQ/OQ/PQ Services for the Instrument to support Instrument validation. Fees will be invoiced at the amount set forth on the quotation upon completion of such service.
- PREVENTATIVE MAINTENANCE SERVICES. If Customer has purchased separate preventive maintenance services outside of a Total Service Package, MSD will use its commercially reasonable efforts to provide one (1) scheduled preventative maintenance visit for the Instruments. Fees will be invoiced in advance at the amount set forth on the quotation.
- HOURLY REPAIRS AND SERVICES. MSD will use its commercially reasonable efforts to provide during normal business hours the repairs and services listed on the quotation attached hereto. Fees will be invoiced at the rates set forth on the quotation.
- HOURS OF SERVICE. MSD shall provide all services during its normal business hours of between 8:30 a.m. and 5:00 p.m., Monday through Friday, excluding holidays observed by MSD. In the event that MSD provides services outside of these hours at the request of Customer, such services may be provided at MSD’s then-current rate.
- REPLACEMENT PARTS. In connection with Total Service Packages, replacement parts will be installed on an exchange basis at no additional charge to Customer when such replacement is effected by MSD. In all other cases, replacement parts are not included and will be charged accordingly. Replaced parts shall become the property of MSD. If MSD ships replacement parts to Customer in advance of performing any services, Customer shall bear the burden of storing such replacement parts in a secure facility at the Customer Location in accordance with any storage or handling instructions provided by MSD.
- FIELD SERVICE REPORT. Upon completion of a visit at a Customer Location, MSD will provide Customer an electronic field service report that describes the services provided by MSD.
- CUSTOMER OBLIGATIONS. Customer agrees to notify MSD promptly of any Instrument failure. Customer agrees to provide access to Instruments and adequate working space, including heat, light, ventilation, electric current and outlets, and telephone lines for use by MSD’s representative dispatched by MSD to perform the services on an Instrument (“Technical Service Representative”). Customer shall cooperate with the Technical Service Representative and provide basic diagnostic and other information as reasonably requested, including, without limitation, a description of any problems or failures in the Instruments observed by Customer. Instruments shall be maintained by Customer in accordance with MSD’s published specifications, including but not limited to proper air conditioning, humidity control, and electric power supply. The Customer shall perform all routine operating maintenance for the Instruments as provided for and specified in MSD’s user guides or other materials provided by MSD. Customer shall not attempt any other repairs, maintenance, modifications or adjustments to the Instruments, or use the Instruments with any unauthorized attachment or device, except as specifically authorized by MSD. If, in the opinion of MSD, any such unauthorized repair, maintenance, modification, adjustment, attachment or device adversely affects MSD’s ability to render the services and such cause or event is not removed or
remedied at Customer’s sole cost and expense, MSD may
terminate this agreement. If the Instrument is located in a
laboratory with a biosafety level greater than BSL-1, then, upon
MSD’s request and in accordance with its instructions, Customer
agrees to decontaminate the Instrument of hazardous materials
including, without limitation, infectious agents. Upon request,
Customer will provide written certification in a form acceptable to
MSD that an Instrument has been properly decontaminated. If, in
the opinion of the Technical Service Representative, the applicable
Instrument may be contaminated, the Technical Service
Representative may refuse to provide services with respect to such
Instrument without liability to MSD. Without MSD’s prior
written consent, Customer shall not move an Instrument. MSD
reserves the right to increase service charges or terminate this
agreement, at its option, at any time upon relocation of the
Instruments to a different Customer Location. Customer shall
only use the documentation or information it obtains in connection
with the performance of any services or this agreement to operate
the Instrument in accordance with its accompanying terms and
conditions.
- EXCLUSIONS. Except as otherwise specifically agreed to in
writing by MSD, services provided hereunder will not include: (a)
electrical work external to the Instruments; (b) repair or
maintenance of accessories, supplies, attachments or other devices
not furnished by MSD; (c) plates, assays or reagents (collectively,
“Consumables”) required to perform the services or otherwise; (d)
upgrades to the Instruments that add additional functionality
and/or capabilities; (e) services arising or resulting from repairs,
modifications, maintenance or adjustments to the Instruments that
were not authorized by MSD; (f) services for damage to or
destruction of the Instruments where such damage or destruction
is a result of, or caused by (i) fire or explosion of any origin,
failures of site electrical power, air conditioning, sprinkler system
or humidity control, theft, or water damage; (ii) riot, civil
commotion, war, or any act of God, including but not limited to
lightning, hail, flood, earthquake, (iii) Customer’s alteration,
storage, use, maintenance or installation of the Instruments in a
manner not conforming to written instructions and specifications
provided by MSD, (iii) parts, supply items, and/or accessories not
manufactured or sold by MSD, or (iv) a Prohibited Use, Prohibited
Action, or Prohibited Transfer; (g) services arising or resulting
from moving or reinstalling an Instrument for which prior
authorization was not received from MSD; (h) interpretation of
data; (i) installation of unauthorized modifications; (j) repair of
damage to the Instruments resulting from accident, Customer
negligence or misuse; (k) Customer-requested specification
changes; (l) routine cleaning; (m) operating supplies other than
replacement parts; (n) inspection costs or other expenses incurred
in operating and effectively improving standards of the
Instruments that have not been under a continuous maintenance
and support agreement with MSD; (o) any problems or defects in
an Instrument caused by Customer; (p) failure of Customer to
follow the recommended maintenance schedule set forth in MSD’s
user guides and materials; (q) provision or installation of software
upgrades (other than bug fixes or error corrections) unless
included in the applicable Total Service Package; or (r) assay
services.
- PRICE AND PAYMENT.
10.1. Payment. 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”). Quoted prices for services are
exclusive of all foreign, federal, state, municipal and other
governmental sales, use and excise taxes, transaction and value
added taxes, fees and assessments and other like taxes or duties,
which are due and payable to MSD on demand. All invoices shall
be payable in United States currency. MSD reserves the right to
assess a service charge not exceeding the lesser of 1.5% per month
(or portion thereof) 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.
10.2. Remedies. If Customer defaults on its payment
obligations set forth herein, MSD may suspend any services
provided hereunder and may at any time and in its sole discretion,
limit or cancel the credit of Customer as to time and amount, and
as a consequence, may require payment in cash before delivery of
any unperformed services, and may demand assurance of
Customer’s due performance. If MSD retains a collection agency
and/or attorney to collect overdue amounts, all collection costs,
including attorney’s fees, shall be payable by Customer.
Customer hereby represents to MSD that Customer is now solvent
and agrees that each acceptance of performance of the services
sold hereunder shall constitute reaffirmation of this representation
at such time. Under no circumstances shall Customer have the
right to offset payments due Customer from MSD under this or
any other agreement against payments due MSD under this
agreement.
- 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.
- LIMITED WARRANTY; WARRANTY DISCLAIMER.
12.1 Limited Warranty. MSD warrants that it will perform
the services in a good and workmanlike manner. MSD’s sole and
exclusive obligation and Customer’s sole and exclusive remedy for
a breach of the foregoing warranty shall be for MSD to reperform
the services that are not in compliance with such warranty brought
to its attention within thirty (30) days after performance of such
services. For the purposes of this Section, services shall not
include replacement parts.
12.2 Warranty Disclaimer. THE WARRANTY SET FORTH
IN SECTION 12.1 IS MSD’S ONLY WARRANTY
CONCERNING THE SERVICES. MSD HEREBY DISCLAIMS,
AND CUSTOMER WAIVES, ANY AND ALL OTHER
REPRESENTATIONS, WARRANTIES AND CONDITIONS,
WHETHER STATUTORY, EXPRESS, IMPLIED OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED REPRESENTATIONS, WARRANTIES AND
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET
ENJOYMENT, SYSTEM INTEGRATION AND DATA
ACCURACY.
- LIMITATION OF LIABILITY. MSD’S LIABILITY FOR
DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNT
PAID FOR THE SERVICES DURING THE LESSER OF THE
TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON
WHICH THE CLAIM AROSE OR THE TERM SET FORTH IN
THE ATTACHED QUOTATION. IN NO EVENT SHALL MSD
BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE
SERVICES OR PARTS OR FOR ANY INDIRECT,
SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL
DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH
OF AGREEMENT, NEGLIGENCE, STRICT LIABILITY,
FUNDAMENTAL BREACH, OR UNDER ANY OTHER
LEGAL THEORY, OR OTHERWISE, EVEN IF MSD HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. MSD shall 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 by
any third party. 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.
- MISCELLANEOUS. If Customer issues a purchase order or
any similar document, even if acknowledged by MSD, the terms
and conditions of that purchase order or similar document,
irrespective of the presence or absence of any similar term or
condition in this agreement, shall have no force or effect and the
terms and conditions of this agreement shall continue unaltered
and unaffected. All notices required to be given under this
agreement must be in writing and sent certified mail, return receipt
requested, or by nationally recognized overnight courier, and shall
be deemed given on the date actually received. This agreement
shall not be amended or modified, nor shall any waiver (by action
or inaction) of any provision be effective unless in writing signed
by both parties. This agreement 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
agreement 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. 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 event and such party shall be
exempted from liability for delays caused by such event. Each of
the terms and conditions of this agreement shall be deemed
separate and the invalidity or unenforceability of any provision
shall not affect any other provision. The failure of either party to
enforce any right resulting from a breach of any provision of this
agreement by the other party shall not be deemed a waiver of any
cumulative or concurrent right relating to any such breach or
subsequent breach of such provision or of any other right hereunder.
The parties agree that there are no third party beneficiaries to this
agreement. The terms and conditions set forth in Sections 12.2,
13, and 14 shall survive the expiration or termination of this
agreement. The quotation and these terms and conditions
constitute the entire agreement with respect to the services 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 entering into this agreement. 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 this agreement are
inserted for convenience of reference only, shall not be deemed to
be a part of this agreement for any purpose, and shall not in any
way define or affect the meaning, construction or scope of any
provisions hereof. All hardware not included in the Instruments,
all tools, or test hardware, and all media, documentation or
software used or provided by MSD in the performance of this
agreement shall remain the personal property of MSD.
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