Terms and Conditions of Sale – In Vitro Diagnostics (IVD) Products

Terms and Conditions of Sale – In Vitro Diagnostics (IVD) Products
Illumina AB
Terms and Conditions of Sale – IVD Products
January 2015
1. Definitions, Interpretation. “Documentation” means Seller’s user manual, package
insert, and similar documentation, for the Product in effect on the date that the Product ships
from Seller. Documentation may be provided with the Product at time of shipment or
provided electronically from Seller. “General Purpose Product(s)” means all Products
other than Test Specific Products (e.g., an instrument that can be used with multiple test
specific IVD Consumables). “Intended use” means Seller’s specific intended use of a
Product as set forth in the intended use statement of the Documentation for such Product.
“IVD Consumable(s)” means Seller branded reagents and consumable items labeled by
Seller for human in-vitro diagnostic use that are intended by Seller to be consumed through
the use of, IVD Hardware.
“IVD Hardware” means Seller branded instruments,
accessories, or peripherals that are labeled by Seller for human in-vitro diagnostic use.
“IVD Software” means Seller branded software that is labeled by Seller for human in-vitro
diagnostic use (e.g., IVD Hardware operating software, data analysis software). All IVD
Software is licensed and not sold and may be subject to additional terms found in the IVD
Software’s end user licence agreement. “Product(s)” means the item(s) acquired hereunder
labeled by Seller for human in-vitro diagnostic use. Products may be IVD Hardware, IVD
Consumables, or IVD Software. IVD Software may be embedded in or installed on IVD
Hardware or provided separately. “Purchaser” means the person or entity acquiring the
Product with the intent to use the Product, from (i) Seller or (ii) Seller’s authorized
distributor or reseller. “Seller” means the Illumina entity selling the Product. The Seller is
identified on the quotation, order acknowledgment or similar communication, or Seller
website if the order is being placed electronically at Seller’s website. “Specifications”
means Seller’s written technical specifications for the Product in effect on the date that the
Product ships from Seller. “Test Specific Product(s)” means those Products that have a
specific intended use set forth in its Documentation (e.g., an in-vitro diagnostic reagent kit
whose Documentation includes an intended use statement stating that the Product is intended
to be used to test for specific nucleic acid sequences, combination of nucleic acid sequences,
diseases, or conditions).
Sections, titles and headings in these terms and conditions are for convenience only and are
not intended to affect the meaning or interpretation hereof. Whenever required by the
context, the singular term shall include the plural, the plural term shall include the singular,
and the gender of any pronoun shall include all genders. As used these terms and conditions
except as the context may otherwise require, the words “include”, “includes”, “including”,
“such as”, “e.g.” or “example(s)” are deemed to be followed by “without limitation”,
whether or not they are in fact followed by such words or words of like import, and “will”
and “shall” are used synonymously. Except as expressly stated, any reference to “days”
shall be to calendar days, and “business day” shall mean all days other than Saturdays,
Sundays or a bank holiday recognised in Sweden.
2. Rights to Products upon Purchase. Subject to these terms and conditions, Purchaser is
granted only a non-exclusive, non-transferable, perpetual, worldwide, non-sublicensable
right under Seller’s (A) Core IP and Application Specific IP to use Test Specific Products
only for the specific intended use set forth in the Test Specific Product’s Documentation, and
(B) Core IP to use General Purpose Products only for the specific intended use set forth in
the General Purpose Product’s Documentation and for Purchaser’s internal research use
(which includes research services provided by Purchaser to third parties), in each of the
preceding (A) and (B), only in Purchaser’s facility (“Permitted Rights”), specifically
excluding any use that (a) is not in accordance with the Product’s Specifications or
Documentation, (b) requires grants of rights or a license to Application Specific IP (except in
the case of a Test Specific Product, which comes with rights to certain Application Specific
IP), (c) is a re-use of a previously used IVD Consumable, (d) to the extent not otherwise
permitted by law is the disassembling, reverse-engineering, reverse-compiling, or reverseassembling of the Product, (e) to the extent not otherwise permitted by law is the separation,
extraction, or isolation of components of the Product or other unauthorized analysis of the
Product, (f) to the extent not otherwise permitted by law gains access to or determines the
methods of operation of the Product, (g) is the use of non-Seller reagent/consumables with
Seller’s IVD Hardware (does not apply if the Specifications or Documentation state
otherwise), or (h) is the transfer to a third-party of, or sub-licensing of, Software or any
third-party software provided by Seller (each of (a) – (h), is referred to as an “Excluded
Use”). As mentioned in the definition of Software, all IVD Software, whether provided
separately, installed on, or embedded in a Product, is licensed to Purchaser, not sold.
Purchaser agrees that the first sentence of this Section is designed to and does alter the effect
of the exhaustion of patent rights that would otherwise result if the sale was made without
restriction. Except as expressly stated in this Section no right or license under any
intellectual property rights owned or licensed by the Seller or the Seller’s members of the
same group (Sw. koncernföretag) or its other affiliates (“Affiliates”) is or are granted,
expressly, by implication or otherwise to Purchaser. “Application Specific IP” means the
intellectual property rights owned by or licensed by Seller and Seller’s Affiliates, as of the
date the Product ships, that pertain to or cover aspects or features of the Product (and use
thereof) only with regard to specific field(s) or specific application(s). Application Specific
IP excludes all Core IP. “Core IP” means the intellectual property rights owned or licensed
by Seller and Seller’s Affiliates, as of the date the Product ships, that pertain to or cover
aspects or features of the Product (or use thereof) that are common to the Product in all
applications and all fields of use. Application Specific IP and Core IP are separate, nonoverlapping, subsets of intellectual property owned or controlled by Seller and Seller’s
Affiliates. By way of non-limiting example, Seller and Seller’s Affiliates’ intellectual
property rights for non-invasive pre-natal testing, for specific diagnostic methods, for
specific forensic methods, and for specific nucleic acid biomarkers, sequences, or
combinations of biomarkers or sequences are examples of Application Specific IP.
Purchaser agrees that (i) actual knowledge by Seller, or Seller’s Affiliates, that Purchaser is
using Product in any manner or for any purpose other than expressly authorized herein does
not (A) waive or otherwise limit any rights that Seller, or Seller’s Affiliates, may have as a
result of such use of the Product, including without limitation, any rights or remedies
available under these terms and conditions and/or at law, (B) grant Purchaser a license to any
intellectual property rights owned or licensed by Seller or Seller’s Affiliates whether by
implication or otherwise with respect to such use of the Product, and (ii) any trade usage,
course of performance or course of dealing between Seller and Purchaser, will not be used to
interpret these terms and conditions.
Subject to the rights conferred hereunder to Purchaser with respect to Test Specific
Products, Purchaser is solely responsible for determining whether Purchaser has all
intellectual property rights that are necessary for Purchaser’s intended uses of the
Product, including without limitation, any rights from third parties or rights from
Seller, or Seller’s Affiliates, to Application Specific IP (collectively “Other IP”). Seller
makes no guarantee or warranty that Purchaser’s specific intended uses will not
infringe the intellectual property rights of a third party or Application Specific IP of
Seller or Seller’s Affiliates.
3. Product Restrictions. The conditions and restrictions found in these terms and
conditions are bargained for conditions of sale and therefore control the sale of and use of
the Products by Purchaser.
a. Unauthorized Uses of Products. Purchaser agrees: (i) to use each IVD Consumable only
one time, and (ii) to use only Seller’s reagents/consumables with Seller IVD Hardware. The
limitations in (i)-(ii) do not apply if the Documentation or Specifications for the Product
state otherwise. Purchaser agrees not to, nor authorize any third party to, use the Products as
described in the Excluded Uses. Purchaser further agrees that the contents of and methods
of operation of the Product are proprietary to Seller and the Product contains or embodies
trade secrets of Seller.
b. Unauthorized Transfer of Products. Purchaser agrees to not sell, rent, lease, loan,
transfer or assign or otherwise dispose of any IVD Hardware or component thereof
containing IVD Software to any third party (“Unauthorized Transfer”) unless Purchaser
erases or removes the IVD Software prior to such action. For the avoidance of doubt,
Purchaser understands that in the event of an Unauthorized Transfer, any rights to use the
IVD Software granted to Purchaser by Seller and the Permitted Rights immediately cease,
and the third party transferee will have no rights to use the IVD Software and no Permitted
Rights. Additionally, in the event of an Unauthorized Transfer, any existing warranties for
the IVD Hardware or IVD Software shall be void and of no effect, as of the date of such
Unauthorized Transfer.
4. Regulatory. Purchaser agrees to comply with all applicable laws and regulations when
using, maintaining, and disposing of Product.
5. Limited Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT
SHALL SELLER OR ITS SUPPLIERS BE LIABLE TO PURCHASER OR ANY
THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS
OR SERVICES, LOST PROFITS, DATA OR BUSINESS, OR FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF
ANY KIND ARISING OUT OF OR IN CONNECTION WITH, WITHOUT
LIMITATION, THE SALE OF THE PRODUCT, ITS USE, SELLER’S
PERFORMANCE OR ANY OF THESE TERMS AND CONDITIONS, HOWEVER
ARISING OR CAUSED, OTHER THAN THROUGH GROSS NEGLIGENCE OR
WILFUL INTENT BY SELLER OR ITS SUPPLIER, AND ON ANY THEORY OF
LIABILITY (WHETHER IN CONTRACT, LAW (INCLUDING NEGLIGENCE AND
STRICT LIABILITY) OR OTHERWISE).
TO THE EXTENT PERMITTED BY LAW AND EXCEPT IN CIRCUMSTANCES
OF GROSS NEGLIGENCE OR WILFUL INTENT, SELLER’S TOTAL AND
CUMULATIVE LIABILITY TO PURCHASER OR ANY THIRD PARTY ARISING
OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS,
INCLUDING WITHOUT LIMITATION, THE PRODUCT (INCLUDING USE
THEREOF) AND SELLER’S PERFORMANCE, WHETHER IN CONTRACT, LAW
(INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE,
SHALL IN NO EVENT EXCEED THE AMOUNT PAID TO SELLER FOR THE
PARTICULAR PRODUCT CONTAINED IN THE PARTICULAR ORDER THAT
DIRECTLY CAUSED THE LIABILITY.
6. Limitations on Warranties. TO THE EXTENT PERMITTED BY LAW AND
SUBJECT TO THE EXPRESS PRODUCT WARRANTY MADE IN THESE TERMS
AND CONDITIONS SELLER MAKES NO (AND EXPRESSLY DISCLAIMS ALL)
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE
Illumina AB
c/o Advokatfirman Lars Berlin AB, Box 26 Balsta, Stockholm, Sweden
Reg: 556867-0847
VAT: SE556867084701
Illumina AB
Terms and Conditions of Sale – IVD Products
January 2015
PRODUCT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE,
DEALING, USAGE OR TRADE. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, SELLER MAKES NO CLAIM, REPRESENTATION, OR
WARRANTY OF ANY KIND AS TO THE UTILITY OF THE PRODUCT FOR
PURCHASER’S INTENDED USES.
7. Product Warranty. All warranties are personal to the Purchaser and may not be
transferred or assigned to a third-party, including a member of the same group (Sw.
koncernföretag) and other affiliates of Purchaser. All warranties are facility specific and do
not transfer if the Product is moved to another facility of Purchaser, unless Seller conducts
such move. The warranties described in these terms and conditions exclude any stand-alone
third party goods that may be acquired or used with the Products.
a. Warranty for IVD Consumables. Seller warrants that IVD Consumables will
conform to their Specifications until the later of (i) 3 months from the date of shipment from
Seller, or (ii) any expiration date or the end of the shelf-life pre-printed on such IVD
Consumables by Seller, but in either event no later than 12 months from the date of
shipment.
b. Warranty for IVD Hardware. Seller warrants that IVD Hardware, other than
Upgraded Components, will conform to its Specifications for a period of 12 months after its
shipment date from Seller unless the IVD Hardware includes Seller provided installation in
which case the warranty period begins on the date of installation or 30 days after the date the
IVD Hardware was delivered, whichever occurs first (“Base IVD Hardware Warranty”).
“Upgraded Components” means Seller provided components, modifications, or
enhancements to IVD Hardware that was previously acquired by Purchaser. Seller warrants
that Upgraded Components will conform to their Specifications for a period of 90 days from
the date the Upgraded Components are provided by Seller. Upgraded Components do not
extend the warranty for the IVD Hardware unless the upgrade was conducted by Seller at
Seller’s facilities in which case the upgraded IVD Hardware shipped to Purchaser comes
with a Base IVD Hardware Warranty.
c. Exclusions from Warranty Coverage. The foregoing warranties do not apply to
the extent a non-conformance is due to (i) abuse, misuse, neglect, negligence, accident,
improper storage, or use contrary to the Documentation or Specifications, (ii) improper
handling, installation, maintenance, or repair (other than if performed by Seller’s personnel),
(iii) unauthorized alterations, (iv) Force Majeure events, or (v) use with a third party’s good
not provided by Seller (unless the Product’s Documentation or Specifications expressly state
such third party’s good is for use with the Product).
d. Procedure for Warranty Coverage. In order to be eligible for repair or
replacement under this warranty Purchaser must (i) promptly contact Seller’s support
department to report the non-conformance, (ii) cooperate with Seller in confirming or
diagnosing the non-conformance, and (iii) return the Product, transportation charges prepaid
to Seller following Seller’s instructions or, if agreed by Seller and Purchaser, grant Seller’s
authorized repair personnel access to the Product in order to confirm the non-conformance
and make repairs.
e. Sole Remedy under Warranty. Seller will, at its option, repair or replace nonconforming Product that is covered by this warranty provided that Seller can reasonably
identify and confirm such non-conformance. The warranty period for repaired or replaced
IVD Consumables is 90 days from the date of shipment, or the remaining period on the
original IVD Consumables warranty, whichever is later. IVD Hardware may be repaired or
replaced with functionally equivalent, reconditioned, or new IVD Hardware or components
(if only a component of IVD Hardware is non-conforming). If the IVD Hardware is replaced
in its entirety, the warranty period for the replacement is 90 days from the date of shipment
or the remaining period on the original IVD Hardware warranty, whichever is later. If only a
component is being repaired or replaced, the warranty period for such component is 90 days
from the date of shipment or the remaining period on the original IVD Hardware warranty,
whichever ends later. The preceding states Purchaser’s sole remedy and Seller’s sole
obligations under the warranty provided.
8. Indemnification.
a. Infringement Indemnification by Seller. Subject to these terms and conditions,
including without limitation, the Exclusions to Seller’s Indemnification Obligations (Section
8(b) below), the Conditions to Indemnification Obligations (Section 8(d) below), Seller shall
(i) defend, indemnify and hold harmless Purchaser against any third-party claim or action
alleging that the (A) Test Specific Products when used for the specific intended use set forth
in its Documentation, and (B) the General Purpose Products when used for (x) the specific
intended use set forth in its Documentation, or (y) Purchaser’s internal research use (which
includes research services to third parties), in accordance with these terms and conditions,
and in accordance with the Product’s Documentation and Specifications infringes the valid
and enforceable intellectual property rights of a third party, and (ii) pay all settlements
entered into, and all final judgments and costs (including reasonable attorneys’ fees)
awarded against Purchaser in connection with such infringement claim. If the Product or
any part thereof, becomes, or in Seller’s opinion may become, the subject of an infringement
claim, Seller shall have the right, at its option, to (A) procure for Purchaser the right to
continue using the Product, (B) modify or replace the Product with a substantially equivalent
non-infringing substitute, or (C) require the return of the Product and terminate the rights,
license, and any other permissions provided to Purchaser with respect the Product and refund
to Purchaser the depreciated value (as shown in Purchaser’s official records) of the returned
Product at the time of such return; provided that, no refund will be given for used-up or
expired IVD Consumables. This Section states the entire liability of Seller for any
infringement of third party intellectual property rights.
b. Exclusions to Seller Indemnification Obligations. For the avoidance of doubt,
Seller has no obligation to defend, indemnify or hold harmless Purchaser for any
infringement claim to the extent such infringement arises from: (i) use of the Product in any
manner not in accordance with its Specifications, its Documentation, or the rights expressly
granted to Purchaser under these terms and conditions, including, without limitation, any use
of the Product beyond the specific intended use set forth in its Documentation, (ii) use of the
Product in combination with any other products, materials, or services not supplied by
Seller, (iii) use of the Product to perform any assay or other process not supplied by Seller,
(iv) Seller’s compliance with specifications or instructions for such Product furnished by, or
on behalf of, Purchaser, (v) Purchaser’s breach of any of these terms and conditions, (vi) use
of stand-alone third party goods that may be acquired or used with the Products, or (vii) use
of the Products in any manner or for any purpose that requires rights to Other IP (each of (i)
– (vii), is referred to as an “Excluded Claim”).
c. Indemnification by Purchaser. Purchaser shall defend, indemnify and hold
harmless Seller, its Affiliates, their non-affiliate collaborators and development partners that
contributed to the development of the Product, and their respective officers, directors,
representatives and employees against any claims, liabilities, damages, fines, penalties,
causes of action, and losses of any and every kind, including without limitation, personal
injury or death claims, and infringement of a third party’s intellectual property rights,
resulting from, relating to, or arising out of (i) Purchaser’s breach of any of these terms and
conditions, (ii) Purchaser’s use of the Product in any manner or for any purpose other than as
expressly authorized by Seller herein, including, without limitation, any use of the Product
beyond the specific intended use set forth in its Documentation, or (iii) any Excluded Claim.
d. Conditions to Indemnification Obligations.
The parties’ indemnification
obligations are conditioned upon the party seeking indemnification (i) promptly notifying the
other party in writing of such claim or action, (ii) giving the other party exclusive control
and authority over the defense and settlement of such claim or action, (iii) not admitting
infringement of any intellectual property right without prior written consent of the other
party, (iv) not entering into any settlement or compromise of any such claim or action
without the other party’s prior written consent, and (v) providing reasonable assistance to the
other party in the defense of the claim or action; provided that, the party reimburses the
indemnified party for its reasonable out-of-pocket expenses incurred in providing such
assistance.
9. Payment Terms. The price of the Product will be the price set out in the Seller’s quote,
or, if no price is quoted, the price set out in the Seller’s published price list in force as at the
date of shipment. Seller will invoice upon shipment. All payments are due within 30 days of
the date of the invoice. All amounts due shall be paid in the currency found on the invoice.
If payment is made by wire or other electronic funds transfer, Purchaser is solely responsible
for any bank or other fees charged, and will reimburse Seller for any such fees. If any
payment is not made by the due date Seller may exercise all rights and remedies available by
law, including without limitation, suspending performance. Purchaser shall pay for all costs
(including reasonable attorneys’ fees) incurred by Seller in connection with the collection of
late payments. Each purchase order is a separate, independent transaction, and Purchaser has
no right of set-off against other purchase orders or other transactions with Seller. Seller will
determine payment terms on a per-order basis and may modify credit terms in its discretion.
Any amounts not paid when due will accrue interest at the rate of 1.5% per month, or the
maximum amount allowed by law, if lower.
10. Shipping Terms; Title and Risk of Loss. Unless otherwise set forth in writing by
Seller or otherwise agreed between the parties, all shipments are made DDP (Incoterms
2010) at the address designated by Purchaser at the time of ordering. In all cases, title
(except for IVD Software and third-party software) and risk of loss transfers to Purchaser
when Product is made available at such address.
11. Taxes. Purchaser agrees that any applicable sales, use, excise, VAT (value added tax),
GST (goods and services tax), withholding and other taxes will be calculated based on both
the tax rates in effect on the date of shipment and the ship to address for the Product. Any
amounts for tax listed on a quotation, if any, are for reference purposes only and are not
binding on Seller. All prices and other amounts payable to Seller are exclusive of and are
payable without deduction for any taxes, customs duties, tariffs or charges hereafter claimed
or imposed by any governmental authority upon the sale of Product, all of which will be paid
by Purchaser. In the event Seller is required by law or regulation to pay any such tax, duty
or charge, such amount will be added to the purchase price or subsequently invoiced to the
Purchaser. In the event Purchaser is required by law or regulation to deduct any such tax,
duty, tariff or charge the Purchaser shall gross up any payment to the Seller.
12. General.
a. Applicability of Terms and Conditions. These terms and conditions, including
any terms in the Documentation, exclusively govern the ordering, purchase, supply, and use
of Product, and prevail over any conflicting, amending and/or additional terms contained in
any purchase orders, invoices, or similar documents all of which are hereby rejected and are
null and void. Seller’s failure to object to any such terms shall not constitute a waiver by
Illumina AB
c/o Advokatfirman Lars Berlin AB, Box 26 Balsta, Stockholm, Sweden
Reg: 556867-0847
VAT: SE556867084701
Illumina AB
Terms and Conditions of Sale – IVD Products
January 2015
Seller, nor constitute acceptance by Seller of such terms and conditions.
b. Order Changes/Cancellations. Orders for Products may not be changed or
cancelled once placed. If Purchaser cancels an order, Purchaser forfeits to Seller any deposit
paid related to such order.
c. Governing Law. These terms and conditions, their interpretation, and the
performance of the parties shall be governed by the laws of Sweden. Seller and Purchaser
agree that the United Nations Convention on Contracts for the International Sale of Goods
shall not apply to these terms and conditions, including any terms in the Documentation.
d. Arbitration. Either party may refer any dispute, controversy or claim arising out
of or in connection with this contract, or the breach, termination or invalidity thereof, to be
finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration
Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed
of a sole arbitrator. The place of arbitration shall be Stockholm. The language to be used in
the arbitral proceedings shall be English. In all cases of arbitration hereunder each party shall
bear its own costs and expenses and an equal share of the arbitrator’s and administrator’s
fees of arbitration; neither party nor an arbitrator may disclose the existence, content, or
results of any arbitration without the prior written consent of both parties, unless required by
law; the decision of the arbitrator shall be final and binding on the parties, provided that, the
arbitrator shall not have the authority to alter any explicit provision of these terms and
conditions; judgment on the award may be entered in any court having jurisdiction. This
clause shall not preclude the parties from seeking provisional remedies in aid of arbitration
from a court of appropriate jurisdiction. Notwithstanding anything herein to the contrary,
any claims or causes of action involving infringement, validity, or enforceability of a party’s
or member’s of the same group (Sw. koncernföretag) or other affiliate’s intellectual property
rights are not subject to this arbitration clause.
e. Representations and Warranties. Purchaser is not an authorized dealer,
representative, reseller, or distributor of any of Seller’s, or its Affiliates’, products or
services. Purchaser agrees, represents and warrants that it (i) is not purchasing the Product
on behalf of a third party, (ii) is not purchasing the Product in order to resell or distribute the
Product to a third party, (iii) is not purchasing the Product in order to export the Product
from the country in which Seller shipped the Product pursuant to the ship-to address
designated by Purchaser at the time of ordering (“Ship-to Country”), and (iv) will not
export the Product out of the Ship-To Country.
f. Remedies for Breach. In addition to any remedies specified elsewhere under these
terms and conditions, and any remedies available to Seller under law or in equity, Seller
may, immediately upon notice to the Purchaser, do any, all, or any combination of the
following in the event Purchaser breaches any of these terms and conditions: (i) cease
performance, including without limitation, cease further shipments of Product, (ii) terminate
the rights granted to Purchaser pursuant to Section 0 (Rights to Product Upon Purchase), (iii)
terminate any service contracts then in effect for affected Product, or (iv) terminate any
remaining product warranty for the affected Product.
g. Facility Requirements and Installation of IVD Hardware.
Purchaser
acknowledges that it is responsible for ensuring at Purchaser’s sole cost that its facility meets
the site requirements for the IVD Hardware. If the purchase of IVD Hardware includes
installation it will be completed within 30 days of delivery of all components of the IVD
Hardware and the facility meeting such requirements, including Purchaser’s reasonable
cooperation.
h. IVD Hardware Compatibility. Due to the slower rate of updates to IVD
Hardware, Purchaser acknowledges that Seller’s research use reagents and consumables may
not be compatible with the IVD Hardware and the IVD Software. Please contact Seller’s
technical support department prior to purchasing any Seller research use reagents and
consumables for use with IVD Hardware and IVD Software.
i. Service Contracts. If a Seller extended service contract for IVD Hardware is being
provided then Seller’s standard terms and conditions for such service contract shall
exclusively govern such extended service contract. Purchaser agrees that all service
contracts are both personal to Purchaser and facility specific: services contracts cannot be
transferred to a third party and may not be transferred to a new facility if the Hardware is
relocated.
j. Future Products. Any future products and/or services (“Unreleased Products”)
are subject to new part numbers, pricing, and specifications and the acquisition of Product
hereunder is not in reliance on the availability of any Unreleased Products.
k. Seller Affiliates. Any actions or rights that may be performed or exercised by
Seller may be performed or exercised by Seller itself or by any of its Affiliates. By way of
non-limiting example, Seller’s Affiliates may carry out shipment, servicing, invoicing and
receipt of payment.
l. Force Majeure. Seller shall not be in breach of these terms and conditions nor
liable for any failure to perform or delay attributable in whole or in part to any cause beyond
its reasonable control, including but not limited to acts of God, fire, flood, tornado,
earthquake, hurricane, lightning, any action taken by a government or regulatory authority,
actual or threatened acts of war, terrorism, civil disturbance or insurrection, sabotage, labor
shortages or disputes, failure or delay in delivery by Seller’s suppliers or subcontractors,
transportation difficulties, interruption or failure of any utility service, raw materials or
equipment, or Purchaser’s fault or negligence. In the event of any such delay the delivery
date shall be deferred for a period equal to the time lost by reason of the delay.
m. Notices. Any notice required or permitted shall be in writing and shall be deemed
received when (i) delivered personally; (ii) 5 days after having been sent by registered or
certified mail, return receipt requested, postage prepaid (or 10 days for international mail); or
(iii) 1 day after deposit with a commercial express courier that provides written verification
of receipt.
n. Assignment. Purchaser shall not assign or transfer these terms and conditions or
any rights or obligations, whether voluntary, by operation of law or otherwise, without the
prior written consent of Seller; provided that, only notice to Seller and no consent shall be
required for any assignment in connection with any merger, acquisition or the sale of all or
substantially all of the stock or assets of Purchaser to a party that (i) agrees in writing to be
bound by these terms and conditions, and (ii) is not a competitor of Seller or any of Seller’s
business units or Seller’s Affiliates. Seller may assign all or part of the right to payments.
Any assignment or transfer made in contravention of the terms hereof shall be null and void.
Subject to the foregoing, these terms and conditions shall be binding on and inure to the
benefit of the parties’ respective successors and permitted assigns.
o. Seller Information. Seller may maintain and use a database of orders and account
information pertaining to Purchaser for purposes of order processing, maintaining records,
assisting with future orders of Purchaser, and compliance with applicable laws and
regulations. Purchaser shall not disclose any terms of this transaction to any third party
without the prior written consent of the Seller, except as (and only to the extent) required by
securities or other applicable law. Purchaser grants to Seller a non-exclusive, fully paid-up,
royalty-free, worldwide, irrevocable, perpetual right and licence, with the right to sublicense,
to use in any manner suggestions, ideas or comments provided by Purchaser to Seller related
to the Products.
p. Export Compliance. The Products, any related technology, or information
provided to Purchaser may be subject to restrictions and controls imposed by the United
States Export Administration Act and the regulations thereunder (or the export regulations
and laws of another country). Notwithstanding anything to the contrary in these terms and
conditions, Purchaser agrees not to use the Products in, or export or re-export the Products,
any related technology, or information provided to Purchaser into any country or to any
person or entity, or in any manner, in violation of such controls or any other laws, rules or
regulations of any country, state or jurisdiction.
q. Healthcare Law Compliance. Purchaser acknowledges and agrees that as a
healthcare company, Seller, and Seller’s Affiliates, may be required by applicable law and
regulation (including codes of practice enforceable by law) (“Healthcare Laws”) to disclose
the existence of these terms and conditions, the terms of these terms and conditions
including financial terms, and the subject matter. Seller agrees it, and its Affiliates, will
disclose the least amount of information as possible in order to comply with such Healthcare
Laws.
r. Waste Electrical and Electronic Equipment (WEEE) and Waste Industrial
Batteries and Accumulators (WIBA) Compliance. The Purchaser shall exclusively
finance the collection and delivery of waste WEEE and WBA to the recycler's address
specified by the Seller, as required by the Directive 2002/96/EC and applicable national law.
This clause applies to all new electrical and electronic equipment (EEE) put on the market
by the Seller after 13 August 2005 (known as new WEEE), as well as all EEE put on the
market before 13 August 2005 (known as historic WEEE) which becomes waste as a result
of a purchase of new EEE from the Seller after August 2005. If the Purchaser resells the
EEE to a customer, the Purchaser will ensure that this clause in its entirety is included in the
contractual arrangements governing the sale to the customer. The Purchaser agrees to
indemnify and keep indemnified and hold harmless the Seller and ENVIRON (as the
operator of B2BWEEE-Scheme) from and against all costs and expenses which ENVIRON
or the Seller incurs or suffers, as a result of a direct or indirect breach or negligent
performance or failure in performance by the Purchaser of its obligations in this clause. For
further information regarding collection, treatment and recycling arrangements for waste
industrial batteries, please contact your local Illumina sales representative.
s. Miscellaneous. Except as expressly stated in these terms and conditions, no right
or license under any of Seller, or Seller’s Affiliates, intellectual property rights is or are
granted expressly, by implication or otherwise. All references to days mean calendar days
unless specifically stated otherwise. To the extent permitted by law, Seller may cease
performance (including cancellation of any order outstanding) immediately without liability
to Purchaser if Purchaser becomes the subject of a voluntary or involuntary application for
bankruptcy (Sw. konkurs) or any proceeding relating to insolvency, receivership, liquidation
or composition for the benefit of creditors. These terms and conditions, including any terms
and conditions in the Documentation, represent the entire agreement between the parties
regarding the subject matter hereof and supersede all prior discussions, communications,
agreements, and understandings of any kind between the parties. No amendment to these
terms or waiver of any right, condition, or breach will be effective unless made in a writing
signed by both parties. If any provision is held invalid or unenforceable, such provision
shall be enforced to the maximum extent permissible so as to give effect to the intent of the
parties, and the remaining terms will continue in full force and effect. The failure of either
party to exercise any right granted herein or to require any performance of any term or the
waiver by either party of any breach shall not prevent a subsequent exercise or enforcement
of, or be deemed a waiver of any subsequent breach of, the same or any other term. Nothing
herein shall constitute or create a joint venture, partnership, or any other similar arrangement
between the parties.
Illumina AB
c/o Advokatfirman Lars Berlin AB, Box 26 Balsta, Stockholm, Sweden
Reg: 556867-0847
VAT: SE556867084701
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