Terms and Conditions of Sale – Research Use Products (FGx, ForenSeq)

Terms and Conditions of Sale – Research Use Products (FGx, ForenSeq)
Terms and Conditions of Sale--Research Use Products (FGx™, ForenSeq™)
1. Definitions. “Consumable(s)” means Seller branded reagents and consumable
items that are intended by Seller to be consumed through the use of Hardware.
“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.
“Hardware” means Seller branded instruments,
accessories, or peripherals. “Product(s)” means the item(s) acquired hereunder.
Products may be Hardware, Consumables, or Software. Software may be embedded in
or installed on 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. “Software” means Seller branded software (e.g., Hardware operating
software, data analysis software). All Software is licensed and not sold and may be
subject to additional terms found in the Software’s end user license agreement.
“Specifications” means Seller’s written technical specifications for the Product in
effect on the date that the Product ships from Seller.
2. Rights to Products upon Purchase. Subject to these terms and conditions,
Purchaser is granted only a non-exclusive, non-transferable, personal, nonsublicensable right under (A) Seller’s Core IP, and (B) Seller’s Application Specific IP
(only to the extent necessary to perform the specific protocols as expressly described in
the Seller-provided user guide for the Product and only for forensics or paternity uses),
to use the Product only in Purchaser’s facility only for Purchaser’s Permitted Use
(“Permitted Rights”). “Permitted Use” means use for internal research (which
includes the fields of forensics, paternity testing, and research services provided by
Purchaser to third parties), 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 to the extent set forth in the preceding
sentence, (c) is a re-use of a previously used Consumable, (d) is the disassembling,
reverse-engineering, reverse-compiling, or reverse-assembling of the Product, (e) is the
separation, extraction, or isolation of components of the Product or other unauthorized
analysis of the Product, (f) gains access to or determines the methods of operation of
the Product, (g) is the use of non-Seller reagent/consumables with Seller’s Hardware
(does not apply if the Specifications or Documentation state otherwise), (h) is the
transfer to a third-party of, or sub-licensing of, Software or any third-party software
provided by Seller, or (i) is a clinical, diagnostic, or other non-research use of the
Product (each of (a) – (i), is referred to as an “Excluded Use”). All 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 Seller intellectual property rights is or are granted, expressly, by
implication, or by estoppel, to Purchaser. “Application Specific IP” means the
intellectual property owned by or controlled by Seller and Seller’s affiliates 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 owned or controlled 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,
non-overlapping, 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) Purchaser’s use of Product in any manner or for
any purpose other than Permitted Use is a breach of these terms and conditions, (ii)
actual knowledge by Seller, or Seller’s affiliates, that Purchaser is using Product in any
manner or for any purpose other than Permitted Use 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, at law and/or in equity, (B) grant Purchaser a license to any
intellectual property owned or controlled by Seller or Seller’s affiliates whether by
implication, estoppel, or otherwise with respect to such use of the Product, and (iii) any
trade usage, course of performance, or course of dealing between Seller and Purchaser,
will not be used to interpret these terms and conditions, including without limitation,
the scope of the Permitted Use rights for Product conferred under this Section.
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 Consumable
only one time, and (ii) to use only Seller Consumables with Seller Hardware. The
limitations in (i)-(ii) do not apply if the Documentation or Specifications for the
Product expressly state otherwise. Purchaser agrees not to, nor authorize any third
party to, use the Products as described in any 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 Hardware or component thereof
containing Software to any third party (“Unauthorized Transfer”) unless Purchaser
erases or removes the 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 Software granted to Purchaser by Seller and the Permitted Rights immediately
cease, and the third party transferee will have no rights to use the Software and no
Permitted Rights. Additionally, in the event of an Unauthorized Transfer, any existing
warranties for the Hardware or Software shall be void and of no effect, as of the date of
such Unauthorized Transfer.
4. Regulatory. The Product is labeled For Research Use Only. Purchaser
acknowledges that (i) the Product has not been approved, cleared, or licensed by the
United States Food and Drug Administration or any other regulatory entity whether
foreign or domestic for any specific intended use, whether research, commercial,
diagnostic, or otherwise, and (ii) Purchaser must ensure it has any regulatory approvals
that are necessary for Purchaser’s intended uses of the Product. Purchaser further
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, CONSEQUENTIAL, OR PUNITIVE 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 AND ON ANY THEORY OF LIABILITY
(WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY OR OTHERWISE).
TO THE EXTENT PERMITTED BY LAW, 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, TORT (INCLUDING NEGLIGENCE), 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 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 an affiliate 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
this Agreement exclude any stand-alone third party goods that may be acquired or used
with the Products.
TCs for Goods RUO (FGx™, ForenSeq™) Worldwide January 2015
a. Warranty for Consumables. Seller warrants that Consumables, other than
custom 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 Consumable by Seller, but in either event, no later
than 12 months from the date of shipment. With respect to custom Consumables (i.e.,
Consumables made to specifications or designs made by Purchaser or provided to
Seller by, or on behalf of, Purchaser), Seller only warrants that the custom
Consumables will be made and tested in accordance with Seller’s standard
manufacturing and quality control processes. Seller makes no warranty that custom
Consumables will work as intended by Purchaser or for Purchaser’s intended uses.
b. Warranty for Hardware. Seller warrants that Hardware, other than
Upgraded Components, will conform to its Specifications for a period of 12 months
after its shipment date from Seller unless the Hardware includes Seller provided
installation in which case the warranty period begins on the date of installation or 30
days after the date the Hardware was delivered, whichever occurs first (“Base
Hardware Warranty”). “Upgraded Components” means Seller provided
components, modifications, or enhancements to 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
Hardware unless the upgrade was conducted by Seller at Seller’s facilities in which
case the upgraded Hardware shipped to Purchaser comes with a Base 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
non-conforming Product that is covered by this warranty, provided that Seller can
reasonably identify and confirm such nonconformance. The warranty period for
repaired or replaced Consumables is 90 days from the date of shipment, or the
remaining period on the original Consumables warranty, whichever is later. Hardware
may be repaired or replaced with functionally equivalent, reconditioned, or new
Hardware or components (if only a component of Hardware is non-conforming). If the
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 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 Hardware warranty, whichever ends later. The preceding states
Purchaser’s sole remedy and Seller’s sole obligations under the warranty.
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 Product when used for
Permitted Use, 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 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 or for any purpose other than Permitted Use, (ii) 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, (iii) use of
the Product in combination with any other products, materials, or services not supplied
by Seller, (iv) use of the Product to perform any assay or other process not supplied by
Seller, (v) Seller’s compliance with specifications or instructions for such Product
furnished by, or on behalf of, Purchaser, (vi) Purchaser’s breach of any of these terms
and conditions, (vii) use of stand-alone third party goods that may be acquired or used
with the Products, or (viii) use of the Products in any manner or for any purpose that
requires rights to Other IP (each of (i) – (viii), 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 or (ii) 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. Seller will invoice upon shipment. All payments are due within
30 days of the date of the invoice except that payments in Japan are due within 60 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 DAP
(Incoterms 2010) at the address designated by Purchaser at the time of ordering and
Purchaser is responsible for freight and insurance which will be added to the invoice
and paid by Purchaser, except that all shipments to member countries of the E.U. are
made DDP (Incoterms 2010) at the address designated by Purchaser at the time of
ordering. In all cases, title (except for 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. For Purchasers
in New Zealand, Seller and Purchaser agree that subsection 8(4) Goods and Services
Tax Act 1985, as may be amended, does not apply to the Products.
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 override 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 Seller, nor constitute acceptance by Seller of such terms and
conditions.
TCs for Goods RUO (FGx™, ForenSeq™) Worldwide January 2015
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 (i) the State of California,
U.S.A., if Purchaser is located in the United States or (ii) the laws of the country where
the Seller entity is located, if Purchaser is not located in the United States. 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. In Seller’s sole discretion, any dispute, claim or controversy
arising out of or relating to these terms and conditions, shall be determined by
confidential binding arbitration conducted in the English language, under generally
accepted arbitration rules and procedures in a venue to be determined by Seller. In all
cases of arbitration 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.
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 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 2 (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 Hardware.
Purchaser
acknowledges that it is responsible for ensuring at Purchaser’s sole cost that its facility
meets the site requirements for the Hardware. If the purchase of Hardware includes
installation it will be completed within 30 days of delivery of all components of the
Hardware and the facility meeting such requirements, including Purchaser’s reasonable
cooperation.
h. Service Contracts. If a Seller extended service contract for 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.
i. 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.
j. 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.
k. Force Majeure. Seller is not responsible 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,
government actions, 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, shortage of energy, 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.
l. 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.
m. Assignment. Purchaser may 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.
n. 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 may not disclose any financial 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 license, with the right to sublicense, to use in any manner
suggestions, ideas or comments provided by Purchaser to Seller related to the
Products.
o. 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
this Agreement, 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.
p. 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 (“Healthcare Laws”) to disclose the existence of this Agreement, the
terms of this Agreement including financial terms, and the subject matter (e.g., the
U.S. Sunshine Act, and state and foreign equivalents). Seller agrees it, and its
affiliates, will disclose the least amount of information as possible in order to comply
with such Healthcare Laws.
q. 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 by estoppel. All references to days mean
calendar days unless specifically stated otherwise. 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 petition in
bankruptcy 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.
TCs for Goods RUO (FGx™, ForenSeq™) Worldwide January 2015
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