1. General: Entire Agreement
These terms and conditions shall govern the sale of custom and associated products (collectively, “Products”) by Molecular Devices ("Seller") for the party purchasing such products ("Buyer"). Seller’s offer to sell Products to Buyer is expressly limited to Buyer’s acceptance of these terms and conditions. Any of the following constitutes Buyer’s unqualified acceptance of these terms and conditions:
(i) issuance or assignment of a purchase order for the Products,
(ii) acceptance of any Product under the purchase order, or
(iii) payment for any of the Products under the purchase order.
Additional or different terms or conditions proposed by Buyer (including any additional or different terms provided in a purchase order) shall be void and of no effect unless specifically accepted in writing by Seller. This agreement shall be the exclusive agreement between the parties for the Products subject to the terms and conditions herein. Any prior or contemporaneous understandings, agreements, and representations, oral or written, are superseded by these terms and conditions. No modification to these terms and conditions shall be valid unless in writing and signed by Seller.
2. Requirements
A. Seller and Buyer shall sign a technical document which shall specify, among other things, the deliverables (each a “Deliverable”), acceptance criteria (“Acceptance Criteria”), and, if applicable, milestones and key design assumptions (“Key Assumptions”) for each Deliverable. Any other Products purchased in conjunction with Deliverables shall be provided in accordance with manufacturer’s published specifications.
B. Requests for changes in the Deliverables or Acceptance Criteria or notification of changes in Key Assumptions shall be submitted in writing (each, a “Change Order”) setting forth in reasonable detail the description and reasons for the change. As soon as reasonably practical, Seller shall access whether the changes set forth in the Change Order will have an impact on the project schedule, scope of work or price. Seller shall notify Buyer in writing accordingly and shall issue a quotation for the revised scope of work, if applicable. If Buyer agrees to proceed with the project based on the revised scope of work, both Parties shall sign the Change Order which will be incorporated into this agreement and Buyer shall issue a revised purchase order for the amount quoted by Seller. If Buyer does not agree to proceed with the revised scope of work as a result of changes in Key Assumptions identified by Seller, Buyer may terminate this agreement upon written notice to Seller, without further liability for either party.
3. Acceptance
Seller shall conduct factory acceptance testing at Seller’s facility for each Deliverables (“FAT”) to verify that it meets the Acceptance Criteria. The Deliverables will be accepted by Buyer if they meet the Acceptance Criteria as evidenced by the factory acceptance test document provided by Seller to Buyer upon completion of FAT. The time and place of FAT shall be communicated by Seller to Buyer and Buyer may attend the FAT at its own option and expense.
4. Payment
The Products covered by this agreement shall be sold and invoiced at the prices listed on the quotation. Prices do not include sales, excise, use or other taxes now in effect or hereafter levied by reason of this transaction. Payment terms are net thirty (30) days from date of invoice
5. License
Buyer acknowledges that any software programs (the “Software”) included with the Products are licensed to Buyer under the terms and conditions of the click-through license agreement provided with the Software (“EULA”) and that title to the Software (or any copies thereof) is not transferred to Buyer.
6. Delivery
Unless stated otherwise by Seller, all shipments will be F.C.A. (Free Carrier) (as defined in Incoterms 2010) Seller’s shipping facility, if destination of delivery is outside the United States, and F.O.B. (Free on Board) (as defined in U.C.C. Section 2-319) Seller’s shipping facility, if destination of delivery is within the United States. Seller may make delivery in installments and may render a separate invoice for each installment.
7. Warranty
A. Instrument Warranty. Seller warrants that the instrument (the "Instrument(s)") purchased from Seller will be free from defects in materials and workmanship during the applicable warranty period, provided that the Instrument has been operated at all times in accordance with the instruction manual and user guide by or under the direct supervision of a certified operator who has attended Seller's training course for the Instrument. If the Instrument is installed by an authorized field service engineer of Seller (the "Seller Representative"), then the warranty period for the Instrument ends twelve (12) months after the date of installation (as certified by Seller Representative) or thirteen (13) months after the date of shipment, whichever is shorter. If the Instrument is not installed by a Seller Representative, the warranty period for the Instrument terminates twelve (12) months after date of shipment. Seller will provide field service for drug discovery Products under warranty, and will provide depot service for bioresearch Products under warranty. Buyer may purchase an upgrade to field service for some bioresearch Products.
B. Instrument Accessory Warranty. Software is warranted as set forth in the EULA. Seller warrants that the option, accessory or media on which a copy of the software is placed (each hereinafter referred to as an "Instrument Accessory") will be free from defects in materials and workmanship during the applicable warranty period. If an Instrument Accessory is acquired at the time the Instrument is purchased, then the warranty period for the Instrument Accessory will be the same as the warranty period for the Instrument. If an Instrument Accessory requires installation after the Instrument is purchased, but during the warranty period of the Instrument, then the warranty period for the Instrument Accessory will be the greater of
(i) the remaining warranty period for the Instrument, or
(ii) the lesser of ninety (90) days from the date of installation of the Instrument Accessory or one hundred and twenty (120) days from the date of shipment of the Instrument Accessory. If an Instrument Accessory requires installation after the warranty period for the Instrument has expired, the warranty period for the Instrument Accessory will be the lesser of ninety (90) days from the date of installation of the Instrument Accessory or one hundred and twenty (120) days from the date of shipment of the Instrument Accessory. If an Instrument Accessory that does not require installation is acquired after the Instrument is purchased, but during the warranty period of the Instrument, then the warranty period for the Instrument Accessory will be the greater of
(i) the remaining warranty period for the Instrument, or
(ii) ninety (90) days from the date of shipment of the Instrument Accessory. If an Instrument Accessory that does not require installation is acquired after the warranty period for the Instrument has expired, the warranty period for the Instrument Accessory will be ninety (90) days from the date of shipment of the Instrument Accessory.
C. Instrument Service Parts Warranty. Seller warrants that the Instrument service parts (the "Replacement Part(s)") provided during the warranty period from Seller will be free of defects in materials and workmanship, only if such parts are installed by Seller Representative. The warranty period for the Replacement Part is the greater of
(i) the remaining warranty period of the Instrument, or
(ii) ninety (90) days from the date of installation of the Replacement Part
D. Consumable and Reagent Warranty. Seller warrants that the consumable and reagent Products purchased from Seller (“Consumables” and “Reagents”, respectively) will be free from defects in materials and workmanship during the applicable warranty period, provided that the Consumable or Reagent has been used at all times in accordance with the instruction manual and user guide. Each Consumable and Reagent is shipped with documentation stating specifications and other technical information. Seller's Consumables and Reagents are warranted to meet or exceed the stated specifications. Sellers' sole obligation and Buyer's sole remedy are limited to replacement of the Consumable or Reagent free of charge in the event that the Consumable or Reagent fails to perform as warranted. The warranty period for the Consumable or Reagent ends six (6) months after the date of shipment.
E. Warranty Exclusion. The warranties provided above and the remedies provided below will not apply to any Product if:
(i) Seller determines that a problem is caused by accident, abuse, misuse, negligence, misapplication, fire, earthquake, flood, other force majeure event, failure of electrical power, the use of unauthorized parts or reagents, or unauthorized repairs or modifications;
(ii) Seller determines that a problem is caused during or as a result of shipment or relocation;
(iii) Seller's serial number has been removed or defaced from the Product; or
(iv) a problem arises from or is based on Seller's compliance with Buyer's specifications
F. Remedy. For any breach of the warranties provided in this statement, Seller will, at its own expense and option, and as its sole obligation, and as Buyer's exclusive remedy, repair or replace any defective Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent if Buyer notifies Seller during the applicable warranty period and Seller determines that the Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent is defective and is covered by the warranty. Seller is not required to repair, replace or refund any defective Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent if Buyer fails or refuses to certify to Seller in writing that the Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent has been appropriately decontaminated and cleaned and is safe for handling by Seller personnel (the "Clearance Certificate"). The warranty period for the repaired or replaced Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent will not exceed the warranty period for the defective Instrument, Instrument Accessory, Replacement Part, Consumable or Reagent. The warranty period for any Replacement Parts, which may be new, remanufactured or refurbished at Seller's sole discretion, will not exceed the warranty period for the defective Instrument or Instrument Accessory.
G. Warranty Disclaimer. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
8. Limitation Of Liability
IN NO EVENT WILL EITHER PARTY BE RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY FOR ANY LOST PROFITS, OR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR CONTINGENT DAMAGES ARISING FROM OR RELATING TO THIS CONTRACT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING FOR ANY LIABILITY ON ACCOUNT OF A CLAIMED DEFECT IN ANY PRODUCT DELIVERED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT PAID BY BUYER ON WHICH THE CLAIM IS BASED.
9. Intellectual Property
A. Intellectual property shall include without limitation all rights to and any interests in any patent, design, trade mark, copyright, know-how, trade secret and any other proprietary right or form of intellectual property (whether protectable by registration or not), Buyer list, specification, formula, device, drawing, design, system, process, logo or mark (“Intellectual Property”).
B. All Intellectual Property provided to Seller by and/or on behalf of Buyer, in any form whatsoever, which is owned by or licensed to Buyer prior to being provided to Seller, shall remain the property of Buyer. Seller shall acquire no right, title or interest in such Intellectual Property as a result of this agreement.
C. Any Intellectual Property used by Seller in providing the Deliverables that: (a) existed prior to the agreement effective date, or
(b) are acquired or developed by Seller shall remain the property of Seller (“Seller IP”). Seller grants to Buyer a perpetual, world-wide, royalty-free, non-exclusive, non-transferable irrevocable license to (and to permit its affiliates and Buyers to) use, execute, reproduce, transmit, display, perform, and create derivative works from any Seller IP incorporated into, made a part of or necessary for the use of any of the Deliverables. The foregoing shall be subject to Buyer’s payment of all amounts for the Deliverables.
10. 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
11. Force Majeure
Any delay in the performance of any duties (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.
12. General
These contract terms will be governed by the laws of the State of California, without regard to conflicts of law principles which would require the application of the laws of any other state. All waivers must be in writing. A party’s failure to exercise any of its rights under this agreement shall not constitute a waiver or forfeiture of any such rights nor of any other rights. 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 represents the entire agreement between the parties as to the matters set forth herein and integrates all prior discussions and understanding between the parties. Buyer's rights hereunder may not be assigned to any third party by Buyer except with the prior written approval of Seller.