1. Exclusive Terms.
Seller provides technical support services on the following terms. These terms apply to all technical support plans sold by Seller, whether Buyer has purchased a single incident or annual technical support plan. Buyer may contract with Seller for a single incident (for instrument products only) or annual technical support plan by product type per lab location as specifically identified on a purchase order (“Covered Product”). In the event Buyer has multiple instruments of the same type in the same lab, Buyer must buy a multi-instrument support plan for that instrument type. Multiple plans must be purchased to cover different instrument types in the same lab. Seller's offer to sell the technical support services to Buyer is expressly limited to Buyer's acceptance of the following terms and conditions. Any of the following constitutes Buyer's unqualified acceptance of these terms and conditions:
(1) issuance or assignment of a purchase order for a single incident or annual technical support plan;
(2) acceptance of any technical support services under the purchase order; or
(3) payment for any of the technical support services 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. These terms shall be the exclusive agreement between the parties for the provision of technical support services for Covered Products. Any prior or contemporaneous understandings, agreements, and representations, oral or written, are superseded by these terms and conditions.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. Agents and sales representatives of Seller have no authority to make any representations not included herein, and any such representations should not be relied on by Buyer.
2. Plan Coverage.
- Per Incident Support. Seller sells technical support services in single, or annual incident support plans. Under each plan, a Buyer receives support on a per incident basis up to the limits purchased (each a “Support Incident”). Tech Support Services (defined below) are considered part of the same Support Incident if the issues arise from the same root cause. Once the Support Incident has been closed by Seller, additional requests for support will be considered a new Support Incident.
- Scope of Technical Support Services. Seller will respond to a request for troubleshooting and telephone assistance for Covered Product via telephone or email during the hours of 8:00 a.m. and 5:00 p.m., Pacific Standard Time ("PST"), Monday through Friday, excluding holidays (“Tech Support Services”). A list of standard holidays will be provided to Buyer upon request. Response times are as stated on the quotation or product description at the time of purchase for your particular plan. Seller will make reasonable efforts to respond to a request for Tech Support Services within a reasonable time or within the response time described in your quotation, but does not guarantee that a response will be provided within a specific time period. As used herein, “Software” means the software programs that are Covered Products or, if the Covered Product is an instrument, are included with the Covered Product. If the annual plan description on your quote includes software updates, then Tech Support Services also include releases of software that Seller makes generally available to customers during the plan term to correct errors, fix bugs, or create minor improvements, or enhancements of existing features (the "Update(s)") which Updates Seller will designate by a change in the number to the Update of the Software released during the term of this Agreement. As used herein, a Software Update is designated by a change in the number to the right of the first or second decimal point. Updates must be installed during the annual support plan term. For greater clarity, Updates do not include those releases of the Software that provide substantial new features or additional functionality which Seller designates by a change in the number to the left of the first decimal point. Buyer acknowledges that all reported errors may not be corrected. Any Update will be deemed part of the Software and will be used in accordance with the requirements and obligations in the license agreement for the Software. If Buyer has purchased GxP or Application Support plans, those services will be provided as shown on your quotation. Buyer must not exceed the number of purchased license seats or user licenses stated on your quotation. Exclusions from coverage. The following services are expressly excluded from coverage under this agreement:, protocol development, maintenance or repair services. With respect to software support, Seller will not be obligated to provide the Software Updates or technical support services if (a) error or malfunction of any third party software used by Buyer either separately or in conjunction with Seller's Software, or (b) Buyer has failed to incorporate the latest Update previously released to Buyer.
- Support Incident Resolution. Seller will make reasonable efforts to resolve a Support Incident but does not guarantee that Support Incidents will be resolved. A Support Incident is considered resolved upon the earlier of Seller
(1) instructing Buyer how to resolve the problem;
(2) informing Buyer that problem is caused by an incompatibility issue with a Covered Product;
(3) informing Buyer that root cause has been identified as a hardware problem, an application problem, user error or other reason not covered by a technical support plan. A Support Incident is deemed resolved in Seller’s sole discretion. - WARRANTY. Seller will make provide Tech Support Services in a professional and workmanlike manner and will use best efforts to resolve a Support Incident. However, Seller does not guarantee that each or any support incident is capable of being resolved through Tech Support Services. TO THE EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTY AND REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL OR WRITTEN, STATUTORY, EXPRESS OR IMPLIED. AS PERMITTED BY APPLICABLE LAW, SELLER SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY OR IMPLIED WARRANTIES, RELATED TO OR ARISING IN ANY WAY OUT OF THESE TERMS AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY AND RESPONSIBILITY UNDER THIS AGREEMENT AND ANY UNDERLYING SERVICE PLAN FOR BREACH OF WARRANTY IS RE-PERFORMANCE OF THE SERVICES WITHIN A REASONABLE TIME. THESE ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY. EXCEPT AS SET FORTH ABOVE, THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND.
3. Customer Responsibilities.
Tech Support Services are provided to a single person or to multiple persons designated by Buyer at time of purchase of a plan for one or more Covered Products and such person(s) must be experienced users of the Covered Products (“Technical Contact(s)”). Technical Contacts are the Buyer representatives authorized to initiate a Support Incident and request Tech Support Services. Buyers can change Technical Contacts by providing written notice to Seller. Buyer will cooperate with the resolution of a Support Incident by providing information necessary to assist Seller in resolving the Support Incident. Buyer is responsible for any and all restoration or reconstruction of lost or altered files, data, or programs. Buyer will maintain and implement a complete data backup and disaster recovery plan appropriate for its business operations and is solely responsible for security of its confidential, proprietary or classified information. Buyer will not disclose confidential, proprietary or any information that is subject to intellectual property rights.
4. Term/Termination/Payment.
All annual technical support plans have a term of one year. Single incident plans are in effect for the particular incident. If Buyer has prepaid for a single incident plan, the Tech Support Services must be requested by Buyer within twelve (12) months of purchase or will be forfeited without refund. Services shall be sold and invoiced at the prices listed on the Seller’s quotation or online plan description. Prices do not include sales, excise, use or other taxes now in effect or hereafter levied by reason of this transaction. Buyer will pay and indemnify and hold Seller harmless from all such taxes. Payment terms are net thirty (30) days from date of invoice. Seller reserves the right to require alternative payment terms, including, without limitation, site draft, letter of credit or payment in advance. If payment is not received by the due date, a late charge will be added at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date thereof. All payments will be made as follows.
All checks should be sent to:
Molecular Devices
2680 Collections Center Drive
Chicago, IL 60693
All payments by wire transfer should be submitted to:
Credit:
Bank of America
San Francisco, CA
Under Swift B of A US65
For Credit of: Molecular Devices
Routing and Transit No.: 121000358
Final Account No.: 1493-6-04706
By Order of: "Sending Company Name"
If Buyer is delinquent in paying any amount owed to Seller by more than ten (10) days, then without limiting any other rights and remedies available to Seller under the law, in equity, or under the Agreement, Seller may (i) suspend production, shipment or deliveries of any or all Products purchased by Buyer, or (ii) by notice to Buyer, treat such delinquency as a repudiation by Buyer of the portion of the Agreement not then fully performed, whereupon Seller may cancel all further deliveries and any amounts unpaid hereunder shall immediately become due and payable. If Seller retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including attorney's fees and expenses, shall be payable by Buyer. Buyer hereby represents to Seller that Buyer is now solvent and agrees that each acceptance of delivery of the Products sold hereunder shall constitute reaffirmation of this representation at such time.
5. IP Ownership.
As between Seller and Buyer, Seller will exclusively own all rights in and to any inventions, improvements, or technology created, developed, or made by any employee or contractor of Seller in connection with the performance of the Tech Support Services.
6. Limitation of Liability.
In no event will Seller be liable for any consequential, indirect, exemplary, special, or incidental damages, including any lost profits, arising from or relating to this Agreement or the Services even if Seller has been advised of the possibility of such damages. Seller’s total cumulative liability, whether in contract or tort or otherwise, will not exceed the fees paid during the twelve months period preceding the claim. One or more claims will not enlarge this limit.
7. 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.
8. 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.
9. 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. Any additional or inconsistent terms provided in any purchase order will not have any legally binding effect. Buyer's rights hereunder may not be assigned to any third party by Buyer except with the prior written approval of Seller.