Instrument Services Terms and Conditions

  1. TOTAL SERVICE PACKAGES. 

    1. 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 applicable 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.
    2. 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.
    3. Term. The Total Service Package will continue in effect for the period set forth on the applicable quotation.
    4. 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”).

     

  2. 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.

     

  3. 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.

     

  4. 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. Fees will be invoiced at the rates set forth on the quotation.

     

  5. 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.

     

  6. 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.

     

  7. 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.

     

  8. 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.

     

  9. 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.

     

  10. PRICE AND PAYMENT. 

    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.
    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.

     

  11. 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.

     

  12. LIMITED WARRANTY; WARRANTY DISCLAIMER. 

    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.
    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.

     

  13. 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 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 OTHER¬WISE, 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.

     

  14. 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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