APPLIED BIOSYSTEMS GENERAL TERMS AND CONDITIONS OF SALE
These General Terms and Conditions of Sale (“Terms”) shall govern all orders for and purchases of products and services from Applied Biosystems (“AB”), including installation of equipment, unless other terms are specifically designated by AB to apply to a specific product or service, or AB and buyer have entered into a master purchase agreement or other written agreement that expressly provides that its terms supersede and replace these Terms with respect to the products or services covered by the master purchase or other agreement (See Section 13, SOLE TERMS, INCONSISTENCIES, ORDER OF PRECEDENCE).
1.PRICE. The price for any product or service (hereinafter collectively “Product or Products”) shall be the price stated in AB´s quotation to buyer for the Product (“AB´s Quotation”) or, if AB has not issued a quotation, AB´s list price of the Product at the time AB receives buyer´s purchase order. AB´s Quotations are valid for 30 days from the quotation date unless otherwise stated in AB´s Quotation. If AB´s price is stated by reference to a price list, then the price shall be AB´s list price in the jurisdiction in which the Product is to be delivered or performed in effect at the time AB receives buyer´s purchase order. Prices stated are exclusive of all taxes, fees, licenses, duties, levies or other governmental assessments (“Taxes”) and, unless otherwise stated in AB´s Quotation, shipping and handling charges, freight and insurance. All Taxes related to Product shall be paid by buyer (other than taxes assessed against AB´s net income), or in lieu thereof, buyer shall provide AB with a tax exemption certificate acceptable to the relevant taxing authorities. Taxes and other charges payable by buyer may be billed as separate items on AB´s invoice.
2 . PAYMENT TERMS; COLLECTION COSTS; SECURITY TERMS. Payment terms are net 30 days from date of AB´s invoice. If AB deems buyer to be or to have become uncreditworthy, AB shall have the right to require alternative payment terms, including without limitation sight draft, letter of credit, or payment in advance. Payment for partial shipments shall be based on unit or prorated prices, and payment for partial installation(s) shall be based on percentage of completion of installation, as reasonably determined by AB. If payment is not received by the due date, AB may assess and buyer agrees to pay a late payment charge at the rate of 1% per month (12% per year) or the maximum legal rate, whichever is less, of the amount due from the due date to the date of payment. If AB retains a collection agency or attorney to collect unpaid amounts, AB may invoice buyer for, and buyer will pay, all reasonable costs of collection, including without limitation reasonable attorneys fees. Buyer hereby grants to AB and AB reserves a purchase money security interest in all tangible Product purchased from AB, and in any proceeds thereof, for all amounts owing to AB for or related to such Product. Upon request by AB, buyer shall sign any reasonable documents required for AB to perfect such security interest and, to the fullest extent permitted by law, buyer hereby expressly grants AB authority and a limited power of attorney to file financing statements and amendments thereto for and on behalf of buyer for such Product and any proceeds thereof. Payment in full of all amounts owed for and related to such Product shall release such security interest in the Product and proceeds.
3. CREDIT TERMS. AB may, at any time and in its sole discretion, limit or cancel the credit of buyer as to time and amount, suspend shipments, demand payment in cash before delivery of Product, or demand other assurances of buyer´s performance. If buyer fails to agree and comply with the different terms of payment demanded, or fails to give adequate assurances of performance, AB may, without prejudice to any other right or remedy AB may have: (i) by notice to buyer, treat such failure or refusal as a repudiation by buyer of that portion of buyer´s order not then fully performed, whereupon AB may cancel all further deliveries, and any amounts unpaid for non-cancelled Product shall immediately become due and payable; or (ii) make shipments under reservation of a security interest, whereby the buyer will execute any documents necessary to create and perfect this security, and demand payment against tender of title documents.
4. ACCEPTANCE OF ORDERS, DELIVERY, TITLE AND RISK OF LOSS, INSTALLATION. AB may accept or reject any buyer purchase order for Product in whole or in part. If a purchase order is accepted, AB will use reasonable efforts to ship tangible Product or perform services, including equipment installation if agreed to by AB, subject to the purchase order within a reasonable time after ordered, or, if a shipment, service commencement or installation date is indicated in AB´s Quotation or otherwise agreed upon in writing by an authorized representative of AB, on or before such date. AB may make delivery in installments, and each installment shall be deemed to be a separate sale. AB may render a separate invoice for each installment, which invoice shall be paid without regard to prior or subsequent installments. Unless indicated otherwise in AB´s Quotation, title and risk of loss with respect to all Products except Products that are software or services, and risk of loss with respect to software, shall pass from AB to buyer upon transfer of possession of the Product to a common or other third party carrier at AB´s facility. If AB has undertaken to install a Product, it is buyer´s responsibility, at buyer´s cost, to have the installation site prepared and available for installation free of hazardous or unsafe conditions and, unless AB otherwise agrees, to move the Product, uncrated, from the buyer´s delivery dock or receiving location to the table top or other place of installation. Buyer shall not assign AB personnel to work in biosafety level 3 or level 4 laboratories without prior written notice to AB and AB´s consent.
5. CANCELLATION AND DEFERRAL. BUYER MAY NOT CANCEL ANY PURCHASE ORDER. However, unless otherwise stated in AB´s Quotation, buyer may defer the shipment date one time for up to 60 days for instruments and other hardware, and up to 30 days for reagents, consumables and other tangible Product, by giving written notice to AB at least 30 days before the scheduled shipment date for instruments and other hardware, and at least 10 days before the scheduled shipment date for other Product.
6. REJECTION AND RETURN OF PRODUCTS. Any claims for damaged, missing or defective Product must be reported in writing by buyer within 5 days from the date of buyer´s receipt of the Product. In addition, buyer must promptly return a rejected Product to AB, C.O.D., unused and in a condition no worse than that delivered to buyer and in the Product´s original containers and packing material, accompanied by a valid return authorization number obtained from AB. AB may refuse any Product not timely rejected or sought to be returned without a valid return authorization number. For any valid claim timely made, AB, at its option, may repair the Product or replace the Product with an identical or substantially similar Product. Shipping charges will not be credited. THESE ARE BUYER´S SOLE AND EXCLUSIVE REMEDIES FOR DAMAGED OR MISSING PRODUCT, AND, EXCEPT FOR EXPRESS WRITTEN WARRANTY RIGHTS, FOR DEFECTIVE PRODUCT. AB may require that buyer signs and delivers a properly completed certificate of decontamination prior to returning any Product.
7. LIMITED WARRANTY. AB makes only those warranties with respect to Product expressly identified as “warranties” and set forth in AB´s current operating manual or catalog, or in a specific written warranty included with and covering Product, if any. Warranties are made only to the buyer purchasing the Product directly from AB, are not transferable and do not extend to the benefit of any other person or entity, unless otherwise expressly stated in writing by AB. ANY PRODUCT NOT COVERED BY AN EXPRESS WRITTEN WARRANTY IS SOLD AND PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED. Any description of Product recited in AB´s Quotation is for the sole purpose of identifying Product, and any such description is not part of any contract between AB and buyer and does not constitute a warranty that Product shall conform to that description. Any sample or model used in connection with AB´s Quotation is for illustrative purposes only, and is not part of any contract between AB and buyer and does not constitute a warranty that Product will conform to the sample or model. No affirmation of fact or promise made by AB, whether or not in AB´s Quotation, shall constitute a warranty that Product will conform to the affirmation or promise. Unless otherwise specified in writing in documentation shipped with Product or otherwise agreed by AB in writing, AB does not provide service or support for custom products or other products made to buyer´s specifications. THE WARRANTIES IDENTIFIED IN THE FIRST SENTENCE OF THIS PARAGRAPH ARE AB´S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO PRODUCT AND ARE IN LIEU OF ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, ALL OF WHICH OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), WHETHER ARISING FROM A STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE.
8. INTELLECTUAL PROPERTY AND RELATED INDEMNITY.
8.1 BY AB. Subject to the restrictions set forth in this Section 8 and provided buyer complies with its obligations in this Section 8, AB agrees to defend buyer, and indemnify buyer from and against any infringement damages finally awarded, in any legal action or proceeding brought by a third party against buyer to the extent that such action is based on a claim that the manufacture and sale of a Product by AB infringes any United States or foreign patent, copyright, trademark or other intellectual property right of such third party if AB had actual knowledge of such intellectual property right and infringement at the time of delivery of the Product to buyer. Notwithstanding the foregoing, AB shall have no liability or obligation under this Section 8 with respect to any claim of infringement based upon: (i) modifications to any Product made by buyer or a third party; (ii) manufacture, assembly, labeling or branding of Product by AB pursuant to specifications or designs or requests for specific labeling or branding furnished by buyer. Notwithstanding anything herein to the contrary, AB shall have no indemnification obligations with respect to Product originating from a third party and provided under these Terms. Buyer´s sole right to indemnification with respect to such third party Product shall be pursuant to the original manufacturer´s or licensor´s indemnification obligations, if any, to the extent provided by the original manufacturer or licensor.
8.1.1 Buyer´s Obligations. Buyer must notify AB in writing of any claim for which it may seek defense and indemnity from AB hereunder promptly after becoming aware of such claim, make no admission of liability with respect to the claim, and cooperate with and provide reasonable assistance to AB, at AB´s expense with respect to reasonable out of pocket expenses paid by buyer to third parties for such assistance, in the defense or settlement of such claim. AB shall have sole authority to defend and/or settle any claim under this Section 8. AB´s obligations under this Section 8 are contingent upon buyer´s compliance with all of the foregoing.
8.1.2 Remedy for Infringement, Rights of AB, Exceptions. If any Product or portion thereof is subject to a suit or other legal proceeding claiming that the Product or such portion infringes a third party´s intellectual property right, or in AB´s opinion is (are) likely to become subject of such a claim, AB shall, at its option, have the right to either: (a) procure for buyer the right to continue using the Product; or (b) modify the Product so that it becomes non-infringing; or (c) require buyer to return the Product and upon return, refund to buyer the price actually paid by buyer for the Product, less a reasonable amount for use, damage and obsolescence; or (d) substitute for the alleged infringing Product other suitable, non-infringing Products with comparable functionality.
8.1.3 ENTIRE LIABILITY. THE FOREGOING STATES THE ENTIRE LIABILITY OF AB, AND THE EXCLUSIVE REMEDY OF BUYER, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF PATENT, COPYRIGHT, TRADE SECRET OR ANY OTHER INTELLECTUAL PROPERTY RIGHT BY OR IN CONNECTION WITH ANY PRODUCT.
8.2 BY BUYER FOR BUYER´S MODIFICATIONS OR SPECIFICATIONS. If buyer modifies any Product or furnishes AB with specifications or designs or requests for specific labeling or branding, buyer agrees to defend, indemnify and hold AB harmless against all liabilities, damages, costs, expenses and claims arising from or based upon buyer´s modifications or AB´s manufacture and sale of Product or other performance in compliance with such specifications or designs or requests for labeling or branding.
8.3 INDEMNITY DEFENSE. The party providing indemnification in accordance with this section 8 shall have the sole control with respect to the defense and settlement thereof at its expense.
9.COMPLIANCE WITH LAWS, USE OF PRODUCT, VALIDATION. The parties understand and agree that (a) all Products are labeled “For Research Use Only. Not for use in diagnostic procedures.”; (b) all Products have not received any governmental approval, clearance, or similar designation (“Product Approvals”), do not satisfy the requirements of any governmental body or other organization, and have not been validated for clinical or diagnostic use, for safety and effectiveness, or for any other specific use or application; and (c) the buyer is solely responsible for compliance with any and all applicable laws, and regulations, and governmental policies that pertain to its use of the Product including, but not limited to, obtaining any necessary Product Approvals. Products should be used by qualified professionals in strict accordance with applicable instructions, warnings and other information in user manuals and other Product documentation. The burden of proof for safe use and handling of Products sold by AB to the buyer is entirely the responsibility of the buyer.
10.USE RESTRICTIONS. The buyer is not licensed to, and agrees not to: (a) distribute any Product, directly or indirectly, to any third party for any purpose or use, except with prior written consent obtained from AB; (b) use or allow anyone to use an AB supplied Product contrary to applicable instructions; (c) decompile, deconstruct, disassemble or make other attempts to reverse engineer Product; (d) or provide a fee-for-service or other noncollaborative sample processing service to third parties using any AB supplied Product (e.g. wherein the service provider offers standardized services for standardized fees to multiple parties, the customer does not contribute scientifically to the services performed and all rights to the results and discoveries derived therefrom are transferred to the customer). AB has optimized its Products for use with certain AB products and authorized third party products. Accordingly, AB recommends that buyer not use any Product provided hereunder in combination with any products which are not either: (i) provided by AB or (ii) from a source authorized by AB. The buyer acknowledges that failure to comply with any restriction of use set forth herein (including without limitation the preceding sentence) will (i) constitute a breach of these Terms, (ii) invalidate any warranty provided herein and any applicable service agreement, and (iii) may constitute a violation or infringement of AB´s and/or a third party´s intellectual property rights.
11.FORCE MAJEURE. AB shall not be liable for any delay or failure of performance, including without limitation failure to deliver or failure to install, where such delay or failure arises or results from any cause beyond AB´s reasonable control, including, but not limited to, flood, fire, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, plant breakdown, computer or other equipment failure, unusually severe weather, earthquake or other act of God, power loss or reduction, strike, lock-out, boycott or other labor disputes of any kind (whether relating to its own employees or others), embargo, governmental regulation or an inability or delay in obtaining materials. In the event of any such delay or failure of performance, AB shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances; and AB shall also have the right, to the extent necessary in AB´s reasonable judgment, to apportion Product then available for delivery fairly among its various customers in such manner as AB may consider equitable.
12.LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL AB BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES SUSTAINED BY BUYER OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR CAUSED BY PRODUCT, AB´S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS RELATING TO THE PURCHASE OF PRODUCT OR PERFORMANCE OF SERVICES, AB´S BREACH OF THESE TERMS, THE POSSESSION OR USE OF ANY PRODUCT, OR THE PERFORMANCE BY AB OF ANY SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT AB IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF DATA, DOWNTIME, PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR LOSS OF REVENUE, PROFITS, GOODWILL, OR BUSINESS OR OTHER FINANCIAL LOSS.
13.SOLE TERMS; INCONSISTENCIES; ORDER OF PRECEDENCE. These Terms, together with AB´s Quotation, any applicable label license or patent statement or other written conditions of use, any other terms and conditions expressly agreed to in writing by an authorized representative of AB “(collectively, “AB´s Terms”), and buyer´s statement on its purchase order (if accepted by AB) of the name or identity of the Product(s) purchased, quantity, delivery date, bill to and ship to address and, if accurate, price (and only such information on buyer´s purchase order), constitute the complete, exclusive and entire agreement between AB and buyer with respect to purchases of Product (unless other terms and conditions are expressly designated to be applicable by AB in writing), and AB´s offer to sell Product is expressly limited to such terms. Such terms shall take precedence over and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, and any of buyer’s additional or different terms and conditions, which are hereby rejected and shall be void. Buyer´s submission of a purchase order or other instrument for or regarding the purchase of Product, whether or not in response to an AB Quotation, shall be deemed acceptance of and agreement to AB´s Terms to the exclusion of any other terms and conditions appearing in or referenced in such purchase order (except the name or identity of products purchased, quantity, delivery date, bill to and ship to address and, if accurate, price) or other instrument, which are hereby deemed to be material alterations and notice of objection to which is hereby given, notwithstanding anything contained to the contrary in buyer´s purchase order or other instrument or elsewhere. Any acceptance by AB of any offer of buyer is expressly conditioned on buyer´s assent to and acceptance of AB´s Terms to the extent they are additional or different terms from those of buyer´s offer. Except as otherwise provided in these Terms, in the event of an inconsistency between these Terms and the terms appearing on AB´s Quotation or other agreement signed by an authorized representative of AB, the terms appearing on AB´s Quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these Terms, and all other provisions of these Terms shall remain in full force and effect.
14.NO IMPLIED RIGHTS. Nothing in these Terms shall be deemed or construed (i) as a license or grant of any intellectual property rights, whether express, implied, by estoppel or otherwise; (ii) to limit AB´s rights to enforce its patent or other intellectual property rights, including, without limitation, as to use of any Product beyond that granted under any patent or other intellectual property label license or statement applicable to the Product; (iii) as granting buyer any right to be supplied with any Product or component thereof beyond those ordered by buyer and supplied by AB in accordance with these Terms; or (iv) as a license or grant of any right to buyer to manufacture or to have manufactured any Product.
15.CHOICE OF LAW. Any contract between AB and buyer relating to Product, including these Terms, and any disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of California, U.S.A., excluding both its choice of law provisions and the United Nations Convention on Contracts for the International Sale of Goods.
16.EXPORT CONTROLS. Buyer agrees that it will not export or transfer Product for re-export in violation of any United States laws or the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of such laws.
17.MISCELLANEOUS. No amendment of AB´s Quotation or these Terms or modification thereof shall be binding unless in writing and signed by a duly authorized representative of both AB and buyer. AB´s failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these Terms for any other purpose. If any provision of these Terms shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or enforceability, be severed without in any way affecting the remainder of such provision or any other provision thereof, all of which shall continue in full force and effect.
18. THIRD PARTY PRODUCTS AND SERVICES. Buyer acknowledges and agrees that third party products and services acquired via any AB sales channels are governed by contractual terms provided by the sellers of such third party products and services. AB has no control over and does not guarantee the quality or safety of the third party products or services, the truth or accuracy of third parties´content or listings, the ability of third party sellers to sell products or services, the timely delivery of such products or services, or that the third party seller will complete a transaction. Buyer acknowledges that when the buyer makes a purchase from or enters into a license with a third party seller via an AB sales channel, AB is not a party to such transaction and the contractual relationship is solely between buyer and the third party seller. Buyer further agrees that it is buyer´s sole responsibility to pre-approve any third party seller that buyer conducts business with, and that buyer assumes sole responsibility for any risks or liabilities that may arise out of such transaction. Buyer acknowledges that AB makes no representations or warranties regarding the creditworthiness or any other matter regarding any products or services of third parties. It is at the buyer´s sole discretion to reject any transaction with a third party seller and obtain the same or alternate products through other channels. Buyer irrevocably waives and releases AB from any claim that buyer may have, now or in the future, known or unknown, as a result of the content, action or inaction of third party sellers, or products or services that buyer purchases or licenses from third party sellers via AB.
19.Additional Terms and Conditions of sale for Oligonucleotide Products, INCLUDING SPECIAL TERMS TO PROTECT CUSTOMER CONFIDENTIAL INFORMATION. THE FOLLOWING TERMS AND CONDITIONS OF SALE for PRODUCTS THAT ARE oligonucleotide products, IN ADDITION TO all of the terms and conditions of sale set forth above, APPLY TO THE PURCHASE AND SALE OF ALL APPLIED BIOSYSTEMS OLIGONUCLEOTIDE PRODUCTS, INCLUDING TaqMan® Assays, TAQMAN®LOW DENSITY ARRAYS AND CUSTOM OLIGONUCLEOTIDE SYNTHESIS PRODUCTS.
19.1 DEFINITIONS. The following definitions apply to these Additional Terms and Conditions of Sale for Oligonucleotide Products.
“Confidential Information of Buyer” means each Nucleic Acid Sequence specified by buyer in writing to AB that is intended to be detected by use of a Custom Product or to be included in primers and probes or other oligonucleotide Products manufactured by AB and sold to buyer, and the facts that buyer placed orders for Products containing or intended to detect such sequence and that buyer ordered oligonucleotide Products from AB containing or intending to detect such sequence.
“Custom Product” means (i) an Oligonucleotide Kit that is intended to detect a Nucleic Acid Sequence specified by buyer, or (ii) primers and probes or any other oligonucleotide Product that includes a Nucleic Acid Sequence, or other non-off-the-shelf elements or features, specified by buyer.
“Nucleic Acid Sequence” means the nucleic acid sequence of a genome intended to be detected by use of an Oligonucleotide Kit or that is specified as being included in other oligonucleotide Products.
“Oligonucleotide Kit” means a Product that consists of a combination of reagents and other products that includes at least one oligonucleotide based primer or probe, that is sold by AB as an assay kit, and the use of which is intended to detect at least one specific nucleic acid sequence in a sample.
“Synthesis” means the design (where applicable) or manufacture by AB of Custom Kits or other oligonucleotide Products for delivery to buyer.
19.2 AB´s Evaluation of Custom Kit Orders. AB may decline the Synthesis, at any stage of the Synthesis process, of any Custom Product ordered by buyer that AB deems to be unsuitable or commercially impractical for Synthesis, whether on technological, cost or other grounds.AB will give written notice to buyer within a reasonable time following its determination to decline Synthesis of a Custom Product.Buyer shall have no obligation to pay any fees for time and materials, or for any other expenses incurred by AB, in connection with any declined Custom Product.All Custom Product orders not declined by AB must be paid for by buyer, and orders may not be cancelled or changed by buyer without the written consent of AB. Buyer understands and agrees that buyer´s obligation to pay for all Custom Products that AB proceeds to Synthesize and deliver is firm and irrevocable, regardless of the number of Custom Products declined for Synthesis in a given order. Each purchase order for Custom Products must be for the total amount payable for all Custom Products ordered.The amount corresponding to the charges applicable to declined Synthesis will be reflected in AB´s invoice for the order.
19.3 BUYER´S REPRESENTATIONS. By submitting an order, buyer represents, warrants and agrees that (i) buyer will provide AB with all information known to buyer regarding biological, radiological, and chemical hazards associated with the handling, transport, exposure to or other use of any materials supplied to AB by buyer; (ii) buyer has the right to cause the sequences that buyer has requested AB to manufacture to be manufactured by AB and sold to buyer, that such sequences and the manufacture and sale thereof to buyer will not infringe or result from the misappropriation of the intellectual property rights, including without limitation patent, copyright, trademark and trade secrets, of any third party anywhere in the world (provided that the foregoing shall not be deemed a representation or warranty with respect to methods of manufacture employed by AB), and that the materials buyer furnishes to AB will not infringe or result from the misappropriation of any such intellectual property rights; and (iii) the oligonucleotide Products and components thereof sold to buyer shall be for buyer´s own internal research and development use only and shall not be resold or otherwise transferred or conveyed to any third party without the prior express written consent of AB.
19.4 CONFIDENTIAL INFORMATION OF BUYER. AB agrees that for seven (7) years after the disclosure by buyer to AB of Confidential Information of Buyer, AB shall not disclose such Confidential Information of Buyer to any third party and will use at least the same degree of care as it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care, to prevent the disclosure of such Confidential Information of Buyer to any third party. This undertaking of confidentiality shall not apply to, and AB shall have no obligations under this paragraph with respect to, any Confidential Information of Buyer that (a) was in AB´s possession before receipt from buyer, (b) is or becomes a matter of public knowledge or part of the public domain through no fault of AB, (c) is rightfully received by AB from a third party that was not obliged to keep such information confidential, (d) is developed by AB without reference to Confidential Information of Buyer, or (e) is disclosed by AB with buyer´s prior written approval. Notwithstanding the foregoing, AB may disclose Confidential Information of Buyer to the extent required to comply with governmental regulations and other applicable laws or to respond to subpoena or other compulsory legal process, provided in all cases that AB takes reasonable and lawful actions to avoid or minimize the extent of such disclosure and notifies buyer in writing as far in advance of the date of disclosure as is reasonably feasible so that buyer to the extent feasible will have an opportunity to seek to prevent or limit disclosure.
20. ADDITIONAL TERMS AND CONDITIONS OF SALE FOR ION TORRENT PRODUCTS. THE FOLLOWING TERMS AND CONDITIONS OF SALE SHALL APPLY, IN ADDITION TO ALL OF THE TERMS AND CONDITIONS OF SALE SET FORTH ABOVE, UNLESS EXPRESSLY EXCLUDED HEREWITH, TO THE PURCHASE AND SALE OF ALL ION TORRENT PRODUCTS. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS AND CONDITIONS OF SALE SET FORTH ABOVE AND THE TERMS CONTAINED WITHIN THIS CLAUSE 20, THE TERMS CONTAINED WITHIN THIS CLAUSE 20 SHALL PREVAIL FOR THE SALE AND PURCHASE OF ION TORRENT PRODUCTS
20.1 ION TORRENT WARRANTY. The AB limited warranty provisions contained within clause 7 of these Terms shall not be applicable to Ion Torrent products (“Ion Torrent Products”). For new Ion Torrent instruments, AB warrants to and only to buyer for twelve (12) months from the date of shipping, that the Ion Torrent software and Ion Torrent instruments are free from defects in material and workmanship and conform to AB´s published specifications in all material respects. Where a valid and timely claim in respect of breach of Ion Torrent warranty is submitted to AB, AB may, at its discretion, replace, repair or modify the Ion Torrent instrument. Any agreed replacement shall be at 1:1, like-kind basis, at no cost to the buyer. For Ion Torrent chips or reagents reasonably determined by AB to be defective, independent of user error, shall be replaced by AB on a 1:1, like-kind basis at no cost to buyer, provided that such defective Ion Torrent chips or reagents were used by buyer prior to their expiration date, or if there is no expiration date, the Ion Torrent chips or reagents were used within six (6) months of receipt, and the defect was promptly reported with appropriate detail to AB´s technical support. NO OTHER WARRANTIES SHALL BE APPLICABLE TO ION TORRENT PRODUCTS (WHETHER OR NOT ANY FURTHER WARRANTY DOCUMENTATION MAY BE INCLUDED IN THE SHIPMENT), WITH THE EXCEPTION OF THIRD PARTY WARRANTIES WITH RESPECT TO THIRD PARTY PRODUCT. ANY THIRD PARTY PRODUCTS ARE NOT COVERED BY THIS SECTION AND ANY WARRANTIES FOR THIRD PARTY PRODUCTS ARE PROVIDED BY THE ORIGINAL MANUFACTURER OF THE THIRD PARTY PRODUCT. Warranties are made only to buyer purchasing the Ion Torrent Product directly from AB, are not transferable and do not extend to the benefit of any other person or entity, unless otherwise expressly stated in writing by AB. ANY PRODUCT NOT COVERED BY AN EXPRESS WRITTEN WARRANTY IS SOLD AND PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED. Any description of Ion Torrent Product recited in AB´s quotation is for the sole purpose of identifying Ion Torrent Product, and any such description is not part of any contract between AB and buyer and does not constitute a warranty that Ion Torrent Product shall conform to that description. Any sample or model used in connection with AB´s quotation is for illustrative purposes only, and is not part of any contract between AB and buyer and does not constitute a warranty that Ion Torrent Product will conform to the sample or model. No affirmation of fact or promise made by AB, whether or not in AB´s quotation, shall constitute a warranty that Ion Torrent Product will conform to the affirmation or promise. Unless otherwise specified in writing in documentation shipped with Ion Torrent Product or otherwise agreed by AB in writing, AB does not provide service or support for custom products or other products made to buyer´s specifications. THE WARRANTIES IDENTIFIED IN THIS CLAUSE ARE AB´S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO ION TORRENT PRODUCT AND ARE IN LIEU OF ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, ALL OF WHICH OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), WHETHER ARISING FROM A STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE.
20.2 SOFTWARE. Buyer acknowledges that the software or firmware components or applications, if any, accompanying the Ion Torrent Product, or provided in connection with services are licensed and not sold to buyer. Some software may be branded Ion Torrent (“IT Software”), and other software may be subject to a separate third party software license agreement. Subject to the terms of this Agreement, and effective only upon receipt of full payment or other applicable license fee, the buyer is granted a limited, nonexclusive, personal, nontransferable (except in connection with the sale of the Product), and royalty-free license to use and execute the IT Software in object code form only and only on the Ion Torrent Product. Buyer shall not use the IT Software or related documentation for any other purpose. Buyer shall not, nor shall it permit any employee or agent of buyer to, adapt, modify, copy, reproduce, reverse engineer, decompile, disassemble, distribute, or prepare derivative works based on the IT Software. The buyer shall not receive any right, title, and interest in and to the IT Software and any improvements thereof, nor shall it receive any rights to the IT Software, except as expressly provided herein.
20.3 SOFTWARE UPDATES AND SUPPORT. AB has no obligation to provide IT Software updates or remote monitoring and support, but may do so in its discretion. Buyer acknowledges that in order to receive any such IT Software updates and remote monitoring and support, buyer must provide internet connections to Products capable of such updates, monitoring and/or support. IT Software updates and related documentation are provided “AS IS” AND NO REPRESENTATION IS MADE THAT BUYER´S USE OF THE SOFTWARE OR THE PRODUCTS WILL BE ERROR-FREE OR THAT THE SOFTWARE OR THE PRODUCTS WILL MEET BUYER´S REQUIREMENTS OR THAT ALL ERRORS IN THE SOFTWARE AND/OR DOCUMENTATION WILL BE CORRECTED. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
20.4 OPEN SOURCE SOFTWARE. Notwithstanding anything to the contrary, the software embedded in or provided with the Ion Torrent Products may contain free / open source software (as defined by the Open Source Initiative at http://www.opensource.org/osd.html, ”OSS”). Copyrights to the OSS are held by the organizations or individuals indicated in the copyright notices included in the documentation or the applicable help, about or source files, and each OSS item is provided subject only to its own applicable license terms. The applicable OSS licenses (or, where permissible, the URLs thereof) can be found in either the documentation or the applicable help, about or source files. To the extent required by the applicable OSS license, the OSS source code is provided in or with the relevant Ion Torrent Product.
20.5 ION TORRENT PRODUCT IMPROVEMENTS. Buyer shall promptly disclose any improvement that relates to (a) configuration, composition, use, manufacturing, layout, or packaging of any Ion Torrent Product; and/or (b) software and techniques relating to the extraction, manipulation, processing, analysis or storage of data (”Product Improvements”). “Product Improvements” shall not include data generated using Ion Torrent Product or discoveries derived therefrom (except as expressly set forth in (a) —(b) above). Except to the extent prohibited by applicable laws, the buyer hereby grants to AB a non-exclusive, worldwide, fully sublicensable, fully paid-up, royalty-free, irrevocable, perpetual license to all Product Improvements.
21. AMERICAN RECOVERY AND REINVESTMENT ACT. AB is eligible to receive orders funded by the American Recovery & Reinvestment Act (ARRA). If you are a U.S. Government customer, please call 866-934-5977 in order to place any order funded by ARRA or email ARRAN@appliedbiosystems.com.
