GENERAL TERMS AND CONDITIONS OF SALE
These General Terms and Conditions of Sale apply to the purchase of Products and Services by the customer identified at the "Prepared For" address ("Customer") listed on the attached "Quotation" and Beckman Coulter, Inc. ("Beckman Coulter"), each a “Party” and collectively the “Parties”.
1. DEFINITIONS. "Consumables" means the reagent test kits and supply items listed in the Quotation. "Equipment" means the instruments and the related items supplied with the instrument listed in the Quotation. "Product" means Equipment and Consumables. "Services" means the Services listed in the Quotation.
2. QUOTATION. The attached Quotation is valid if Beckman Coulter receives Customer’s purchase order referencing the Quotation number prior to the date indicated on the Quotation. Beckman Coulter may withdraw the Quotation any time before that date upon notice to Customer or before shipment if an event occurs that is outside the control of Beckman Coulter and makes it commercially impractical for Beckman Coulter to fulfill the order. The prices and other terms are contingent on Customer accepting all terms and conditions on the Quotation without exception. Customer’s issuance of a purchase order for any of the Products or Services referencing the Quotation number or at the prices indicated in the Quotation will be Customer’s indication to Beckman Coulter that Customer agrees to all terms and conditions on this Quotation without exception and it will become the entire agreement between the Parties for the Products and Services ordered. Unless Customer has received a package price, Customer may cancel its purchase order or any part of it if Beckman Coulter has not shipped any part of the cancelled Product. Otherwise, Customer may not cancel its purchase order for the Products.
3. PRICE. The prices Customer must pay for the Products and Services are as stated in the Quotation. All prices are contingent on the Products being shipped to and used in the United States only. In addition to the stated prices, Customer must pay for all taxes and fees imposed on the sale or use of the Products and any other governmental charges imposed on Beckman Coulter relating to the Products and all shipping and handling, freight, insurance, and other Services.
4. SPECIFICATIONS. Specifications in Beckman Coulter's sales literature for the Products are not guaranteed unless previously certified in writing. Beckman Coulter may, without affecting the obligations under the Quotation, make insignificant changes to the specifications of the Product from those contained in the sales literature.
5. PAYMENT TERMS; COLLECTION COSTS. Payment under the Quotation is due thirty (30) days from the invoice date. If Customer fails to pay an invoice by the due date, Beckman Coulter will be entitled to charge Customer a late fee and interest on all amounts due at the rate of the lesser of 1½% per month or the maximum legal interest rate. Despite anything to the contrary in this section, Beckman Coulter may require Customer to pay all or some of the price in advance of delivery. If Customer fails to make advance payment when requested to do so or Customer becomes delinquent in the payment of any sum due Beckman Coulter (whether or not related to the Quotation), Beckman Coulter may cancel the Quotation or refuse to make further deliveries and declare immediately due and payable all unpaid amounts for goods previously delivered to Customer. Each shipment is considered a separate sale. Customer agrees to pay all collection costs, including without limitation reasonable attorneys' fees and expenses Beckman Coulter incurs because of Customer’s failure to pay as provided in this section.
6. SHIPMENT; DELIVERY; ACCEPTANCE; RETURNS. Unless expressly specified on the Quotation, all Products will be delivered F.O.B. Shipping Point. Risk of loss with respect to all Products will pass from Beckman Coulter to Customer upon shipment. Beckman Coulter will ship the Products within a reasonable time after Beckman Coulter receives Customer’s purchase order, or if the Quotation states a proposed shipment date, on or around such date. Beckman Coulter will endeavor to meet any delivery date specified in any purchase order but is not liable for failing to meet the delivery date. The Products will be deemed accepted by Customer upon shipment. Customer must report to Beckman Coulter, in writing, any claims for missing or defective Products within 30 days from Customer’s receipt of them. Defective Products will be addressed according to the warranty provisions. Product returns will be accepted at Beckman Coulter's discretion under its Returned Materials Authorization policy and may be subject to a restocking charge. If Customer fails or refuses to accept delivery of any of the Products for unverifiable claims for loss or damage to products occurring while in transit, Customer’s deposit, if any, for those Products will be kept by Beckman Coulter as liquidated damages, but Beckman Coulter may recover all its damages from Customer if its actual damages exceed the deposit.
7. FIELD APPLICATION SERVICES. In the event the Quotation includes On-Site Method Implementation services for the development workflow protocol (“Protocol”), the following provisions shall apply:
a. Services. Beckman Coulter will use reasonable efforts to deliver the Protocol set forth in the scoping document provided by Beckman Coulter field application scientists (“FAS”). Both Beckman Coulter and Customer agree that the requested delivery dates are good faith estimates that are not firm commitments.
b. Acceptance of Deliverable. Acceptance of the requested Protocol shall occur at the end of the completion of the method implementation milestone, whereas the previously scoped method has been installed and tested with like reagents and/or a representative sample run. Further on-site optimizations may be required at the discretion of the implementing FAS. Beckman Coulter shall not be responsible for validation and verification of the workflow operating within certain specifications and nor will Beckman Coulter be liable for any failure of the Protocol or to do anything other than process the workflow as described in the scoping document/implementation plan letter.
c. DISCLAIMER: Beckman Coulter makes no warranties of any kind whatsoever express or implied, with respect to this Protocol, including but not limited to warranties of fitness for a particular purpose or merchantability or that the Protocol is non-infringing. All warranties are expressly disclaimed. Customer’s use of the Protocol is solely at Customer’s own risk, without recourse to Beckman Coulter. The Protocol is not intended or validated for use in the diagnosis of disease or other conditions. The Protocol is for demonstration only and is not validated by Beckman Coulter.
d. No Patents. Customer agrees that it will file no patent applications related to the Protocol developed by Beckman Coulter.
8. THIRD PARTY USE. Customer may not redistribute the Products to a third party.
9. SERVICES. The Services include telephone technical support and, as required, parts, labor and travel for on-site service calls during Beckman Coulter's normal business hours. The Services, including its limitations and exclusions, are further described in the service description manual. Customer will make the Equipment available to Beckman Coulter at the agreed upon service time or pay Beckman Coulter an additional charge based on Beckman Coulter's prevailing service rates for the service call. Service fees do not include (i) moving, re-installing, de-installing or decontaminating the Equipment or (ii) service on any uninterruptible power systems, line conditioners, or laboratory information services. If Beckman Coulter can provide remote management software, including diagnostics and other services for the Equipment, including PROService, Customer must maintain and provide network or other Internet access to the Equipment so Beckman Coulter can remotely access the Equipment. Customer acknowledges that Beckman Coulter retains ownership of any instrumentation Beckman Coulter provides for remote diagnostics and services capability.
10. LIMITED WARRANTY AND DISCLAIMER. Unless a special warranty is provided below, provided with the Product, or in the attached Quotation, Beckman Coulter warrants to Customer that (i) Products will perform in all material respects in accordance with the applicable operator manual or product labeling for the lesser of twelve (12) months from the delivery date or the expiration date specified on the product labeling, (ii) Products manufactured by Beckman Coulter that by their nature are not intended to and will not function for one year are warranted only to give reasonable service for a reasonable time, which will be determined solely by Beckman Coulter, (iii) if the Product is a reagent or the like, it is warranted only to conform to the quantity and content stated on its label at the time of delivery; and (iv) Services will be performed in a workmanlike manner. If a Product defect is discovered and verified by Beckman Coulter's investigation under normal and proper use during the warranty period, Beckman Coulter will, at its option, and without charge either (i) correct by repair, during its normal business hours, or by replacement with an equivalent product the defective Product or (ii) refund the purchase price paid by Customer. If required by Beckman Coulter, Customer must ship the defective product to Beckman Coulter transportation charges prepaid, and Beckman Coulter will either return the Product to Customer with transportation charges collect or if the Product is found to be defective, return it to Customer at Beckman Coulter’s expense. The original warranty period will be in effect on any repaired or replaced Products. If Beckman Coulter replaces any part under this warranty or because of any Services performed, Beckman Coulter will own the replaced part. Customer’s exclusive warranty for Services not performed in a workmanlike manner will be re-service of the applicable Equipment. If a third party manufactured product is supplied to Customer pursuant to the Quotation, Beckman Coulter assigns to Customer any rights that may exist under the warranty provided by the manufacturer, but Beckman Coulter does not warrant the performance of the third party manufactured product or provide any remedy for failure of the third party product to perform. Customer’s exclusive remedy is any remedy that may exist under the warranty rights passed through to Customer under this section. THE WARRANTIES IN THIS SECTION ARE PROVIDED IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ARE CUSTOMER’S EXCLUSIVE REMEDIES RELATING TO PERFORMANCE OF THE PRODUCTS AND SERVICES. BECKMAN COULTER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTY ABOUT THE MERCHANTABILITY OF THE PRODUCTS OR THEIR FITNESS FOR A PARTICULAR PURPOSE. IF ANY IMPLIED WARRANTIES APPLY AS A MATTER OF LAW, THEY ARE LIMITED IN DURATION TO WARRANTY PERIOD SPECIFIED IN THIS SECTION.
11. LIMITATIONS ON WARRANTY. Customer will be responsible for, and Beckman Coulter's service and warranty obligations under the Quotation will not apply to, repairs, replacements or claims resulting from (i) Customer’s failure to properly perform the service and maintenance required in the operator's manual for the Equipment, (ii) repairs or relocation of the Equipment by persons other than those authorized by Beckman Coulter, (iii) replacements with parts, components and materials not supplied by Beckman Coulter, (iv) misuse, abuse, negligence, negligent operation of or improper storage of any Product, (v) alterations, modifications, disassembly, repair or tampering by any person other than Beckman Coulter's authorized service personnel unless repair by others is made with the written consent of Beckman Coulter; (vi) using unauthorized non-Beckman Coulter brand accessories, reagents, calibrators, consumable or supplies with the Equipment, (vii) environmental conditions outside the recommended range of the Product, such as electrical supply, temperature, or humidity, or (viii) other factors beyond Beckman Coulter's control, such as fire, explosion or flood. Representations and warranties made by any representatives, salespersons, or agents of Beckman Coulter, which are inconsistent or in conflict with or in addition to the terms of the Quotation, will not be binding upon Beckman Coulter unless reduced to writing and approved by an expressly authorized officer of Beckman Coulter.
12. LIMITATION OF LIABILITY. BECKMAN COULTER'S TOTAL LIABILITY TO CUSTOMER UNDER THE QUOTATION WILL BE LIMITED TO DIRECT MONEY DAMAGES NOT TO EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE QUOTATION. THIS LIABILITY LIMIT IS CUMULATIVE AND ALL DAMAGES PAID TO CUSTOMER UNDER THE QUOTATION WILL BE AGGREGATED IN CALCULATING THE SATISFACTION OF BECKMAN COULTER'S LIABILITY LIMIT. BECKMAN COULTER WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT CUSTOMER MAY INCUR FROM DELAYED SHIPMENT OR PRODUCT SELECTION WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT, WARRANTY OR OTHERWISE. BECKMAN COULTER WILL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTIES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PENAL LOSS OR DAMAGE OF ANY NATURE WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF USE), EVEN IF BECKMAN COULTER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. No action arising out of the Quotation may be brought by Customer more than one year after the date the cause of action accrued.
13. DEFAULT. Any of the following events or conditions will be deemed a default under the Quotation: (i) Beckman Coulter has not received any required payment in full within thirty (30) days after the payment is due; (ii) Customer becomes insolvent, is liquidated or dissolved, institutes bankruptcy proceedings or makes an assignment for the benefit of creditors; (iii) Customer is in default of any other agreement between Customer and Beckman Coulter; (iv) without Beckman Coulter's consent, Customer attempts to redistribute the Products; (v) Customer submits any credit or other information to Beckman Coulter that is untrue or misleading in any material respect or (vi) Customer violates any other term or condition of the Quotation and fails to correct the violation within thirty (30) days after receipt of written notice from Beckman Coulter.
14. PURCHASE ORDERS; ENTIRE AGREEMENT. The Quotation (including these General Terms and Conditions of Sale) constitutes the entire understanding between Customer and Beckman Coulter with respect to its subject matter and supersedes any and all prior or contemporaneous communications and agreements regarding its subject matter and cannot be modified except by a written instrument (which states that it is an amendment) signed by authorized signatories of both Parties. Any terms or conditions on Customer’s purchase order, order acknowledgement, or any other document relating to the Products will be without legal effect. Those documents may only be used to confirm quantities and agreed delivery schedules and will not supplement or modify the substantive terms and conditions of the Quotation.
15. CONFIDENTIALITY. The information in the Quotation is confidential and proprietary. Any use or disclosure of this information for any purpose other than that for which it has been provided may cause substantial harm to Beckman Coulter and is prohibited. In the event Customer is provided with a software bill of materials (“SBOM”) in connection with this Purchase, such SBOM shall be considered confidential information and subject to this provision.
16. U.S. GOVERNMENT CONTRACTS. If the Products are to be used in the performance of a U.S. Government contract or subcontract and a U.S. Government contract number appears on Customer’s purchase order, those clauses of the applicable U.S. Government procurement regulations that are mandatorily required by law to be included in U.S. Government subcontracts are incorporated into the Quotation.
17. FDA REQUIREMENTS. If any Product listed is subject to regulations of FDA as a device, sale and delivery of that Product is contingent upon successful completion and processing of a 510(k) notice for that Product.
18. MISCELLANEOUS. The Quotation or any transaction under it relating to the Products will be governed by and construed in accordance with the laws of the state in which Customer is principally located. Customer may not assign or transfer the Quotation, any rights or obligations under the Quotation, or any other information relating to the pricing and structure of this transaction without Beckman Coulter's prior written consent. Beckman Coulter's failure to exercise any rights under the Quotation will not be deemed a waiver or forfeiture of such rights. Beckman Coulter's waiver of a breach of any provision of the Quotation will not be deemed a waiver of any subsequent breach of the same or any other provision of the Quotation.
19. SPECIAL WARRANTIES.
a. GENERALLY. If Beckman Coulter includes a special warranty (covering a designated item or items) in the operator manual or provided to Customer with the Products, despite any warranty in this Quotation, that special warranty is incorporated into the Quotation and replaces any other warranty specified in this Quotation to the extent it conflicts with any warranty stated in this Quotation.
b. CHEMICALS, REAGENTS, SYNTHETIC PEPTIDES AND OTHER BIOLOGICAL MATERIALS. These Products are warranted only to conform to the quantity and content stated on the label at the time of delivery (i) to the carrier for shipment if shipped F.O.B. Shipping Point or (ii) to Customer if shipped F.O.B. Destination. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION ON THE LABEL OF THE PRODUCT. IT IS EXPRESSLY AGREED THAT THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. BECKMAN COULTER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTY ABOUT THE MERCHANTABILITY OF THE PRODUCTS OR THEIR FITNESS FOR A PARTICULAR PURPOSE. Representations and warranties made by any representatives, salespersons, or agents of Beckman Coulter, which are inconsistent or in conflict with or in addition to the terms of the Quotation, will not be binding upon Beckman Coulter unless reduced to writing and approved by an expressly authorized officer of Beckman Coulter.
20. DATA PROTECTION. Customer and Beckman Coulter shall comply with data protection laws applicable to their respective processing of personal data. “Personal Data” is any information that can be used to identify directly or indirectly an individual or that can be reasonably expected to link to an individual.
a. Where Beckman Coulter may process Personal Data stored in Equipment when providing Products or performing Services, the following provisions shall apply: (a) Customer has the sole and exclusive authority to determine the purposes and means of the processing of Personal Data by Beckman Coulter. Beckman Coulter shall process such Personal Data only for the purposes of providing the Products and Services in accordance with Customer’s instructions; (b) Customer shall endeavour to limit the disclosure of Personal Data to Beckman Coulter to that which is reasonably necessary for Beckman Coulter to provide Products or perform Services; (c) Beckman Coulter shall keep Personal Data confidential and shall implement technical and organizational measures to protect it against accidental unlawful or unauthorized destruction, loss, alteration, disclosure or access.
b. Prior to returning any Equipment to Beckman Coulter, Customer shall decontaminate it and ensure that all Personal Data stored in such Equipment is deleted. Customer acknowledges that, in any case, all data and settings stored in the returned Equipment may be deleted by Beckman Coulter.
c. Beckman Coulter and Customer acknowledge that they shall process Personal Data of their respective personnel and/or representatives involved in the performance or administration of the Quotation or in response to any applicable regulatory authority request. Personal Data shared between Beckman Coulter and Customer shall be kept secure by the recipient in compliance with this Quotation and applicable data protection laws, including reference to Personal Data transferred outside of the jurisdiction in which it was collected. Beckman Coulter and Customer act independently with respect to Personal Data of their personnel and/or representatives and the parties should inform these individuals that their Personal Data will be shared with the other Party for the purposes of exercising this Quotation. This Quotation shall not constitute data processing by one Party on behalf of the other party.
d. If a Party proposes the transfer, sharing or other processing of Personal Data that is not contemplated by this Quotation, the Parties shall, prior to such transfer, sharing or other processing, determine and document the Parties’ respective roles with regard to that Personal Data in order to identify and facilitate compliance with their respective obligations under applicable data protection laws. The Parties may enter into further agreements with respect to this activity, if applicable.
21. EXPORT REGULATION. The Products, including any software, documentation, and any related technical data included with, or contained in, the Products, may be subject to U.S. export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. Customer shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, or release any Products to any jurisdiction or country to which, or any party to whom, or for any use for which, the export, reexport, or release of any Products are prohibited by applicable U.S. or foreign law, regulation, or rule. Customer shall be responsible for any breach of this section by its, and its successors' and permitted assigns', affiliates, employees, officers, directors, shareholders, customers, agents, or vendors. Customer shall comply with all applicable U.S. and foreign laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, reexporting, or releasing any Products.