Assay Services Terms and Conditions

  1. SERVICES. MSD will use its commercially reasonable efforts to provide the assay services listed on the applicable quotation and related proposal, if any (“Services”).



    1. 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. If Customer defaults on its payment obligations set forth herein, MSD 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. Upon such default, MSD may suspend Services. If, within the period stated in such demand, but in no event longer than thirty (30) days, Customer fails to agree and comply with such different terms of payment, and/or fails to give adequate assurance of due performance, MSD may by written notice to Customer treat such failure or refusal as a repudiation by Customer of the portion of this agreement not then fully performed, whereupon MSD may cancel all further Services and any amounts unpaid hereunder shall immediately become due and payable. 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.
    3. 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.



    1. Customer will provide MSD with the following as needed by MSD to perform the Services: (a) sufficient amounts of Customer’s materials, such as cells, compounds, samples, or other substances, with any individually identifiable information removed (“Materials”), and (b) comprehensive information concerning the stability, storage and safety requirements of such Materials. After completion of the Services, any such remaining Materials and information will be either destroyed or returned to Customer in accordance with Customer’s written instructions and at Customer’s sole expense. If no such instructions are provided within 60 days of the completion of the Services, any remaining Materials and information will be destroyed. MSD shall use the Materials solely for the purpose of performing the Services and will not transfer the Materials to any third party.
    2. Customer warrants that (a) it is the owner of the Materials or is otherwise permitted to transfer the Materials to MSD, and (b) it has complied with all applicable federal, state and local laws regulations and guidelines applicable to the collection, storage, and handling of the Materials and the privacy of individually identifiable information, including, but not limited to, the Health Insurance and Portability And Accountability Act of 1996 (HIPAA) and the regulations promulgated thereunder, as may be amended from time to time.
    3. For conjugation or prototype printing Services, Customer covenants and agrees that it shall not use any product delivered to Customer by MSD as a result of the Services (“Product”) (1) with any plate, electrochemiluminescent label, read buffer or plate reader that is not purchased from MSD or (2) for purposes other than research purposes, including without limitation, for human or veterinary diagnostic or treatment purposes (“Prohibited Uses”). Customer agrees that it will not copy the Products in whole or in part, modify or create derivative versions of the Products, or disassemble, decompile, or reverse engineer the Products (“Prohibited Actions”). In conjunction with the limitation set forth in this Section 3.3, MSD hereby notifies Customer, and Customer hereby acknowledges that: (a) the Products have not been approved by the U.S. Food and Drug Administration or any other similar regulatory authority for human use; (b) the Products are for research use only; and (c) Prohibited Uses and Prohibited Actions could violate other foreign or U.S. federal, state and/or local laws and/or regulations. MSD DISCLAIMS ANY AND ALL LIABILITY FOR ANY AND ALL USES BY CUSTOMER IN VIOLATION OF THIS SECTION 3.3.


  4. DATA. For sample testing Services, Customer shall be the exclusive owner of the results sent to Customer from MSD’s sample testing of the Materials in the performance of the Services (“Data”). For the avoidance of doubt, Data shall not include any results pertaining to MSD Technology (as defined below in Section 7) even if such results are included in a report delivered to Customer in connection with the Services.


  5. CONFIDENTIALITY. “Confidential Information” means any and all confidential information, data or know-how, whether technical or non-technical, processes, trade secrets, or other proprietary information, disclosed by one party (the “Disclosing Party”) to the other party (the “Recipient”) in connection with the Services, that is marked “confidential” or which by its nature Recipient should reasonably know is confidential. Confidential Information shall not be deemed to include information that (a) was known to the Recipient prior to disclosure without any obligation of keeping it confidential; (b) is or becomes generally available to the public without the Recipient violating this agreement; (c) is received independently from a third party without such third party violating any confidentiality obligation to the Disclosing Party; or (d) is independently developed by Recipient without reference to or reliance upon the Disclosing Party’s Confidential Information. The parties agree that, during the performance of the Services and for three (3) years thereafter, the Recipient shall (i) use the Confidential Information of the Disclosing Party only for the purpose contemplated herein and (ii) hold in confidence and not disclose to any third party any Confidential Information of the Disclosing Party. Confidential Information shall remain the sole and exclusive property of the Disclosing Party. Notwithstanding the foregoing, Data shall be considered Customer’s Confidential Information; provided, however, that MSD shall have the right to publicize statistical results of the Services in a manner that does not identify the Customer or the specific nature of the Services performed.


  6. REGULATORY NOTICE; LIMITATIONS ON USE; NO EXCLUSIVITY. MSD hereby notifies and Customer hereby acknowledges that (a) the Services will be conducted in laboratories that are not certified under the Clinical Laboratory Improvement Amendments and Good Laboratory Practices and/or current Good Manufacturing Practices are not applicable to the Services, (b) the results of the Services shall not be used for purposes other than research purposes, including, without limitation, for human or veterinary diagnostic or treatment purposes and (c) materials provided by a third party(ies) to MSD or independently developed by MSD may be the same or similar to the materials provided by Customer for the Services and that MSD shall not be precluded from rendering independent services to any third party(ies) or from performing internal development or commercialization activities in conjunction with such materials. Customer shall be responsible for all applicable laws, regulations, and ordinances related to the receipt of the Services.


  7. INTELLECTUAL PROPERTY. Inventorship shall be in accordance with U.S. patent law. Any Invention invented solely by MSD shall be solely owned by MSD. Any Invention invented solely by Customer shall be solely owned by Customer. MSD and Customer shall jointly own equal one-half interests in any Invention invented jointly by MSD and Customer. Notwithstanding the foregoing, MSD shall solely own any Invention directed to MSD’s Technology that does not require the use of Materials that are proprietary to Customer. “Invention” shall mean any discovery or invention, whether patentable or not, first made in the performance of the Services. “MSD Technology” shall mean as MSD’s products, processes, reagents, assay methods, instruments for diagnostic, analytical and measurement processes, and electrochemiluminescence technology, including techniques for using, reagents used with, and devices using electrochemiluminescence and methods of making the same.


  8. INDEMNIFICATION. Customer shall indemnify, defend and hold MSD harmless from, any claim or action, including without limitation claim of infringement, arising out of: (a) Customer’s manufacture, sale, or use of any of the Materials, the Data or any product or service based in whole or in part on Customer’s reliance on the Services or any portion thereof provided to Customer by MSD, or any derivative thereof; (b) MSD’s use or reliance on Materials for the performance of the Services; (c) any violation of Section 3.3 above; (d) alterations to any of the Products made by Customer or a third party; and (e) Customer’s sales or marketing of products, substances, or components or ingredients thereof, using Products or on which tests or studies were conducted using any of the Products. Customer shall further indemnify, defend and hold MSD harmless from any claims (including, without limitation, third party claims) for loss, damage or injury (including death) allegedly caused by Customer’s use of the Products.



    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. In instances where MSD is unable to successfully complete the Services due to the Materials or information being defective or insufficient, Customer must, at its sole expense, provide MSD with additional Materials or information in sufficient amounts to complete or reperform the Services.


  10. LIMITATION OF LIABILITY. MSD’S LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID FOR THE SERVICES THAT ARE THE SUBJECT MATTER OF SUCH CLAIM. IN NO EVENT SHALL MSD BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES 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. 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. 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, are hereby expressly rejected, shall have no force or effect and the terms and conditions of this agreement shall continue to govern the Services 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. Notices 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 2.3, 3.2, 3.3, 4, through 8, 9.2, 10, and 11 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.


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