Product Maintenance & Repair Agreement Terms - US Archive
Product Maintenance and Repair Agreement Terms - Effective Date: March 20, 2017
Seller provides product maintenance and repair service agreements on a per instrument basis on the following terms. Buyer may purchase from Seller maintenance and repair services (“Services”) for one or more instruments identified on a purchase order (“Covered Product”). Seller's offer to sell the 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:
- Issuance or assignment of a purchase order for the Services,
- Acceptance of any Service under the purchase order, or
- Payment for any of the 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. This Services agreement shall be the exclusive agreement between the parties for the Services 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 Any prior or contemporaneous understandings, agreements, and representations, oral or written, are superseded by these terms and conditions.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. 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.
I. GENERAL SERVICE TERMS
1. Services.
Subject to the terms and conditions herein, Seller will use commercially reasonable efforts to provide to Buyer the following Services for the Covered Product: diagnosis and repair or any malfunction resulting from and traceable to defects in materials and workmanship of Seller.
Subject to Buyer's payment, Seller will be responsible for all costs incurred in providing the Services including labor and materials, shipping and travel expenses, except as otherwise provided herein. Seller shall have the right to determine in its sole discretion what corrective action Seller will perform to fix any malfunction in the Covered Product. Seller may subcontract the Services to a third party contractor provided that Seller will be responsible for the third party contractor's compliance with the terms herein.
Seller, provides Services for the Covered Products in accordance with the following requirements:
a) Covered Products are removed and decontaminated from biohazardous Buyer's location;
b) Entry into Biosafety level ("BSL") 4 Buyer location by an authorized service engineer of Seller (“Seller Representative”) is not permitted for any purpose;
c) Entry into BSL 3 Buyer location is permitted and Services are provided, with confidentiality, when the Buyer:
i. justifies that removal of the Covered Product from the Buyer location is not feasible,
ii. provides evidence of decontamination, when asked, for Covered Products that require Service,
iii. provides a list of recommended inoculations available against the biohazardous location materials,
iv. provides information about hazards in the location,
v. provides instructions for safe entry into the location,
vi. provides instructions for fire, exposure or spill and other potential emergencies,
vii. provides appropriate safety equipment in good condition, with acceptable fit and with reasonable instructions for use;
d) Waivers are not signed before entry or visit to any biohazardous Buyer location; and
e) Seller Representatives retain the right to refuse Services until the above requirements are met to the satisfaction of the Seller Representatives who are trained to have reasonable safety expectations.
Buyer shall reference the applicable agreement number as shown on Seller's quotation for the Services on all purchase orders submitted by Buyer to Seller.
2. Replacement Parts.
Seller will provide, free of charge, replacement parts for any defective or damaged parts due to defects in materials and workmanship for Covered Products. Seller will not provide, free of charge consumables (e.g. microplates, cuvettes, spectratest plates, lamps, patch plates, water, and air filters) or reagents. Buyer may purchase consumables and reagents from Seller. Replacement parts may be new, remanufactured, or refurbished at Seller's sole discretion. Any parts that have been removed and replaced will become the property of Seller.
3. Response Time and Return Procedure.
Buyer may contact Seller via telephone or email to report any malfunction of a Covered Product, during the hours of 8:00 a.m. and 5:00 p.m., Pacific Standard Time ("PST"), Monday through Friday, excluding holidays. 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.
4. Support Conditions.
Seller's obligation to provide the Services is conditioned on Buyer: a) notifying Seller of any malfunction of the Covered Product within a reasonable period of time; b) providing Seller all information relating to the malfunction; c) packing and shipping the defective Covered Product (if depot serviced) to Seller's facility in accordance with Seller's instructions; d) providing access to the defective Covered Product and Buyer's facility where it is located and informing Seller of any potential hazards which may be encountered while servicing the Covered Product (if field serviced); and e) returning a completed and signed Clearance Certificate.
5. Service Exclusions.
Seller may refuse to provide the Services with respect to any Covered Product which has not been properly maintained or which cannot be decontaminated or cleaned to remove any hazardous material.
6. Price/Payment Terms
Services shall be sold and invoiced at the prices listed on the quotation, website or published price list. 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.
A. Payment terms are net thirty (30) days from date of invoice. Seller shall invoice Buyer for the full amount upon acceptance of Buyer’s purchase order for the Service, unless otherwise indicated on Seller’s quotation for such Service. Seller reserves the right to require alternative payment terms, including, without limitation, site draft, letter of credit or payment in advance.
B. 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.
C. 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"
D. 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 performance of Services for the Covered 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 performance of Services and associated 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.
7. 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 Services.
8. Warranty and Disclaimer.
Seller warrants that it will provide the Services at least in accordance with generally accepted standards prevailing in the instrument repair industry. Warranty claims must be made within ninety (90) days after Services are performed. EXCEPT AS PROVIDED HEREIN AND IN THE TERMS AND CONDITIONS OF SALE OF THE COVERED PRODUCT, SELLER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, THE COVERED PRODUCT, AND THE REPLACEMENT PARTS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SELLER'S SOLE LIABILITY AND RESPONSIBILITY UNDER THIS SERVICE 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.
9. 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 THE SERVICES EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID FOR THE SERVICES HEREUNDER DURING THE CALENDAR YEAR WHEN THE INCIDENT GIVING RISE TO THE CLAIM TOOK PLACE. ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT.
10. Indemnity.
Buyer will defend, indemnify, and hold Seller harmless from any and all claims, losses, damages, debts, settlements, costs, attorneys' fees, expenses and liabilities of any type whatsoever (collectively referred to as**"Claims"**) arising from or related to any injury to employees or contractors of Seller caused by improper installation or use of a Covered Product by Buyer, power supply used by Buyer with a Covered Product, or any material processed by a Covered Product. Seller will have the right to participate in or conduct the defense of such Claim with counsel of its own choice. Seller will use reasonable effort to promptly notify Buyer of any such Claim. No settlement of a Claim will be binding on Seller without its prior written consent.
11. Term and Termination.
Unless otherwise expressly stated by Seller in writing, the initial term of Service agreement is one year, commencing on the date designated by Seller in its quotation or otherwise specified to Buyer. Either party may terminate effective immediately, if the other party commits a material breach of the terms and conditions herein and fails to cure such breach within thirty (30) days after receiving written notice thereof. If Seller terminates as a result of Buyer's material breach, Seller will not be obligated to refund any portion of the fees paid for the Services. Buyer may terminate by providing to Seller thirty (30) days prior written notice if Buyer trades in the Covered Product to purchase another Product from Seller. In which event, Seller may apply a credit toward purchase of Services for the new Product equal to the prorated amount of the fees paid for the Services based on the remaining duration of the original coverage plan. Seller may terminate this Agreement if Buyer transfers the Covered Product to another location. Sections 7, 8, 9, 10, 11, 12 and 13 will survive any termination or expiration.
12. 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.
13. Force Majeure.
Any delay in the performance of any duties under warranty or this Service Agreement (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.
14. Assignment.
This Agreement and Buyer's rights hereunder may not be assigned to any third party by Buyer except with the prior written approval of Seller. Any assignment of this Agreement or any rights hereunder in violation of this Section will be null and void.
II. SERVICE PLANS
15. Service Plan Process.
If Buyer purchased a Service plan for the Covered Product(s) (each, a “Service Plan”), all Service requests from Buyer for Covered Products under Service Plans will receive preferential consideration over Service requests from other buyers that are not under existing warranty or Service Plan.
For Service requests under depot Service Plan, if the Service request cannot be resolved over the telephone, Seller will fax or email a Service request package, containing a Service request number, clearance forms, and if applicable, customs forms to Buyer within twenty-four (24) hours thereafter. Upon receiving the Service request package, Buyer will pack and ship the defective Covered Product to Seller's facility in accordance with the instructions provided by Seller. For Covered Products supported via depot Service Plans, Seller will be responsible for the cost of shipping the defective Covered Product to Seller and the cost of shipping the repaired or replaced Covered Product to Buyer, but not the insurance cost. Buyer will have the option to purchase insurance.
For Service requests under field Service Plan, if the Service request cannot be resolved over the telephone, Seller will dispatch Seller Representative. Seller will use reasonable efforts under the circumstances to provide Services as quickly as possible. The Service will be scheduled at a time mutually agreed upon by Seller and Buyer.
For Service requests under instrument replacement Service Plans, if the Service request cannot be resolved over the telephone, Seller will, at Seller’s cost replace the defective Covered Product with a new or refurbished product, at Seller’s discretion. The replacement will be scheduled at a time mutually agreed upon by Seller and Buyer. Seller will provide to Buyer product replacements forms, including a clearance form and, if applicable, customs forms. Within 30 days from the date of receipt of the replacement product by Buyer, Buyer will pack and, at Seller’s expense, ship the defective Covered Product to Seller's facility in accordance with the instructions provided by Seller. If Buyer fails to return the defective product within such 30-day period, Seller will invoice Buyer for the price of the replacement product and Buyer shall pay such invoice.
Seller may, at its discretion and based on instrument availability, provide a loaner instrument(s) with equivalent functionality to Buyer, at no cost to Buyer, for use for Buyer's internal business purposes during such time as the Services for Buyer's Covered Product(s) are performed. Buyer acknowledges that all right, title and interest in and to such loaner instrument(s) shall at all times remain with Seller, and Buyer shall return such instrument(s) to Seller upon the earlier of Seller's request or completion of Services for Buyer's respective Covered Product(s).
16. Exclusions from Service Plans.
Software maintenance and protocol development services are expressly excluded from Service Plan coverage. In addition, Seller is not obligated to provide the Services if any malfunction arises from or relates to:
(a) improper installation of the Covered Product;
(b) neglect, misuse or abuse of the Covered Product;
(c) use of unauthorized parts, consumables or reagents, or removal of any parts;
(d) repair, modification or alteration of the Covered Product by anyone other than an authorized Seller Representative;
(e) relocation of the Covered Product;
(f) failure of or erratic electrical power; or
(g) fire, earthquake, flood, or other force majeure event. The Services do not include training in using, diagnosing, or repairing the Covered Product, relocation of the Covered Product, or any service other than those referred to herein.
III. TIME AND MATERIAL SERVICES
17. Time and Material Depot Services.
For depot Services provided to Buyer on time and material basis (i.e. where Covered Products are not under an existing warranty or Service Plan for depot Services), prior to the shipment of a Covered Product to Seller, Buyer shall place a purchase order ("PO") with Seller for the amount equal to the estimate stated in Seller's quotation for the Service. The PO must reference the instrument type and serial number. If the actual cost of the Services (parts, labor and shipping) is less than the estimate, Buyer will be billed the actual cost of the Services without further communication. If the cost of the Services is determined to exceed the estimate, Seller shall contact Buyer before any further work is done. If Buyer wishes to continue with the Services, Buyer shall amend the PO to equal the revised estimate for the Services as quoted by Seller. If Buyer does not wish to proceed with the Services based on such estimate, the Covered Product will be returned to Buyer and Buyer shall be invoiced for and shall pay the minimum depot service fee according to Seller's then current list price as quoted by Seller.
18. Time and Material Field Services.
For field Services provided to Buyer on time and material basis (i.e. where Covered Products are not under an existing warranty or Service Plan for field Services), Seller will dispatch the Seller Representative only upon receipt from Buyer of a PO for the amount equal to the minimum field service fee according to Seller's then current list price as indicated on Seller's quotation. If the cost of the Services is determined to exceed the minimum field service fee, Seller shall provide an estimate for such Services to Buyer before any further work is done. If Buyer wishes to continue with the Services, Buyer shall amend the PO amount to equal the estimate for the Services as quoted by Seller.