Instrument Services Terms and Conditions
- Contract Terms. These are the contract terms and conditions ("Terms") under which Promega Corporation ("Promega"), directly or through Promega's authorized distributor or subsidiary, sells its Promega-branded instrument ("Instrument") repair, maintenance, relocation, and/or support services sold pursuant to these terms and listed on the applicable Promega quotation ("Instrument Services") to a person or entity ("Customer"). Additional written contract terms that apply to the Instrument Services ("Additional Terms") may be found in our quotation to Customer. In the event of a conflict between the Terms and any Additional Terms, the Additional Terms will control. These Terms, together with our quotation, and any Additional Terms therein, create the contract ("Contract") between Promega and Customer for the Instrument Services. No quotation given by Promega shall constitute an offer to supply the Instrument Services. An order placed by Customer shall constitute an offer made to Promega subject to these Terms and any Additional Terms. No terms or conditions put forward or implied by Customer in an order, invoice, correspondence or elsewhere, shall be binding on Promega and such conditions or stipulations are hereby excluded and extinguished. Promega's failure to object to any such terms shall not constitute a waiver by Promega and shall not constitute acceptance by Promega of such terms and conditions. The Contract cannot be amended or modified unless agreed to in writing by both parties. All Contracts for Instrument Services are subject to availability. Any error or omission in any quotation, catalog, sales literature, invoice or other document issued by Promega shall be subject to correction by Promega without liability to Promega.
- Orders. Customer shall be responsible to Promega for the accuracy of all orders. In the event of a discrepancy between a catalog number and its description, the catalog number will be used to satisfy the order. Customer shall be responsible to Promega for all confirmation orders to be clearly marked "CONFIRMATION" to avoid duplication of an order. All Customer's orders are subject to Promega's acceptance.
- Price. The price for the Instrument Services will be that as shown in Promega's quotation to Customer in effect at the time Customer places an order for the Instrument Services. The price is exclusive of Value Added Tax (VAT) and all other similar sales taxes, fees or charges, as applicable. If Promega is required to pay any such tax, fee or charge, Customer shall reimburse Promega or, at the time of order, Customer shall provide Promega with an exemption certificate acceptable to the relevant taxing authorities. If Customer is tax exempt, Customer shall provide to Promega a tax exemption certificate from time to time upon request by Promega.
- Payment. Payment terms are net thirty (30) days from date of invoice. No offsets, settlement discounts or other deductions of any kind may be made against amounts due. The time for payment shall be of the essence for all Instrument Services. In the event of default in payment by a due date, Promega reserves the right, without prejudice to other rights, to (a) charge interest at the Applicable Federal Rate +2% per annum as of the time of default and/or (b) suspend further deliveries or services. Promega reserves the right to withhold performance of all Instrument Services until payment of all outstanding amounts owed are paid. All amounts due are payable in invoiced currency unless otherwise agreed in writing. All costs, including, without limitation, legal expenses, incurred by Promega in recovering overdue debts will be payable by Customer.
- Scheduling. Promega provides Instrument Services Monday through Friday, 8:00 am to 5:00 pm (local time), excluding holidays. Promega will work with Customer to schedule Instrument Services at a mutually convenient time.
- Safe Working Environment. If Promega, or one of Promega's authorized service providers, provides the Instrument Services at Customer's premises, it is Customer's responsibility to ensure that the workplace where the Instrument is to be relocated or serviced is safe and meets the Promega documented site requirements. Promega does not provide Instrument Services in Biosafety Level 3 laboratories, unless otherwise agreed to in writing in advance. Promega does not install or service Instruments in Biosafety Level 4 laboratories.
- Spare Parts. Promega, or a company Promega has certified as an authorized service provider, shall determine in its best judgment whether to repair or replace any parts of the Instrument in performing the Instrument Services. New, used, or reconditioned parts may be used. All replaced parts will become the property of Promega. Any replacement or repair of an Instrument or part does not extend any original warranty period for the Instrument or part.
- Exclusions. The Instrument Services provided under this Contract do not cover any non-conformance due to (i) abuse, misuse, neglect, negligence, accident, improper storage or use contrary to the Instrument specifications, documentation or intended uses; (ii) improper handling, installation, relocation, maintenance or repair (other than if performed by Promega or Promega's authorized service providers); (iii) unauthorized alterations; (iv) force majeure events, including but not limited to, flood, lightening, earthquake, tornado, hurricane or fire, pandemics, bombing, armed conflict, malicious mischief, sabotage or other natural or manmade disasters; (v) use with unapproved third-party goods; or (vi) power supply, including but not limited to, disruption, reduction, voltage spikes, or failure in the power supply to the Instrument (together, "Exceptional Causes"). If Promega, or a Promega authorized service provider, in its sole judgment, determines that a non-conformance was caused by an Exceptional Cause, the services will be performed at Promega's current service rate for labor and parts.
Warranties and Warranty Disclaimers. All warranties are personal to the Customer and may not be transferred or assigned to a third party, including an affiliate of Customer. For Instruments comprising the Maxprep® Liquid Handler, Spectrum CE System, or Spectrum Compact CE System, all warranties are valid for the site of installation only and will be considered void if the Instrument is moved to another location of Customer, unless Promega, or a Promega authorized service provider, conducts such re-location and subsequent installation. The warranties described in this Contract exclude any stand-alone goods or accessories, whether provided by a third party or Promega, that may be acquired or used with the Instrument.
- Limited Instrument Service Warranties. Promega warrants that the Instrument Services performed under this Contract will be free from defects in workmanship and conform to the requirements of this Contract.
- Submitting Warranty Claims. If the Instrument Service does not meet the warranty provided hereunder, Customer must make a claim for breach of warranty to Promega's support department within ninety (90) days after the date the Instrument Services were performed and before any unauthorized service or repairs are made on the Instrument. In order to be eligible for repair or replacement under this warranty, Customer must also (i) cooperate with Promega in confirming or diagnosing the non-conformance and (ii) return the Instrument, transportation charges prepaid to Promega following Promega's instructions, or grant Promega's authorized repair personnel access to the Instrument in order to confirm the non-conformance and make repairs or replacements.
- Limitations. THE WARRANTIES IN THIS CONTRACT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, SAID WARRANTIES BEING EXPRESSLY DISCLAIMED. Customer agrees that its sole and exclusive remedy against Promega shall be limited to the repair or replacement of any parts of the Instrument, at Promega's option, that prove to be defective in workmanship. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Promega is willing and able to repair or replace the Instrument or parts of the Instrument. THIS PARAGRAPH STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
- Limitations on Liability. All claims arising under this Contract shall be valid and enforceable one (1) year from the date any such claim accrues. IN NO EVENT SHALL PROMEGA BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES AND PROFITS, EVEN IF PROMEGA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY, IF ANY, OF PROMEGA FOR ALL DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM PROMEGA'S BREACH OF THIS CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR TORT WITH RESPECT TO THE INSTRUMENT, OR ANY PARTS OR SERVICES IN CONNECTION WITH THE INSTRUMENT, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE AMOUNT PAID FOR THE INSTRUMENT SERVICES. THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IS CUSTOMER'S EXCLUSIVE, ALTERNATIVE REMEDY IN THE EVENT THAT ANY OTHER CONTRACTUAL REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Intellectual Property. Customer acknowledges that Customer neither has nor is acquiring any license, concession, rights for use (except as granted herein) or any other right, title or interest in or to any trademarks, trade names, patents, developments, specifications, techniques or other proprietary or confidential information under this Contract.
- Indemnification. Promega shall defend, indemnify and hold Customer and its directors, officers, employees and agents harmless from any loss, liability, cost and expense (including legal fees and costs) arising from third-party claims against Customer for injury to persons, including death, or damage to tangible property occurring while employees of Promega, or employees of a Promega authorized service provider, are on Customer's premises to the extent the claims are caused by such employee's negligent acts or omissions, provided Promega is given prompt notice of any claim and the opportunity to control the defense and settlement of the claim.
- Confidentiality. Customer agrees to keep confidential any non-public technical information, commercial information (including, without limitation, prices) and instructions received from Promega as a result of discussions, negotiations and other communications between the parties in relation to the Instrument Services.
- Notice. Any legal notice or other communication required or permitted to be made or given by either party pursuant to this Contract will be in writing, in English, and will be deemed to have been duly given (a) three (3) business days after the date of mailing if sent by registered or certified United States mail, postage prepaid, with return receipt requested; (b) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine; or (c) when delivered if delivered personally or sent by express courier service.
- Force Majeure. Promega is not responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, whether foreseen or unforeseen, including but not limited to acts of God, strikes, labor disturbances, fires, pandemics, or any other cause beyond the reasonable control of Promega. In the event of any such delay the delivery shall be deferred for a period equal to the time lost by reason of the delay.
- Assignment. Neither party shall assign this Contract, whether by operation of law or otherwise, without the prior written consent of the other party.
- No Waiver. No failure or delay by either Party in exercising any of its rights or remedies hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
- Miscellaneous. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Contract. The parties agree that any rule requiring construction of any provision of this Contract against its drafter shall not apply hereto.
Updated April 2, 2020