Terms of Use

Exhibit A. BD Biosciences Product Terms and Conditions

1. Order Acceptance: The following outlines the terms and conditions upon which Becton, Dickinson and Company (“BD”) accepts orders for BD Biosciences goods and services and constitutes the entire agreement between the parties. These terms and conditions will supersede any agreement or document, including terms and conditions that are part of a purchase order or other document sent to BD by the Customer. By issuing a purchase order, the Customer is deemed to have accepted these terms.

2. Pricing: List prices for reagents can be obtained by visiting the BD Biosciences website at www.bdbiosciences.com or contacting Customer Service toll-free at 844-8-BD LIFE (844-823-5433). BD provides quotes for instruments and service. BD reserves the right to change pricing without notice.

3. Standard Reagent Orders: No minimum order quantity is required, unless specifically noted in the catalog. Orders cannot be revised or cancelled once a delivery note has been created. Additions to orders once a delivery note has been created must be entered on a separate order and may therefore be subject to additional shipping charges.

4. Shipping: All shipments are freight on board (FOB) shipping point and will be shipped upon availability. While BD will endeavor to ship as soon as practicable, BD makes no guarantee that any products will be available at any particular date or that shipping will be completed within any particular time frame.  BD is not liable for any loss or damage during the course of shipment. This includes accidents, theft, vandalism, labor difficulties, or disputes, weather extremes, other acts of nature, or other circumstances causing a delay in delivery. Freight or shipping and handling charges will be prepaid and added to your invoice.

5. Packaging: Upon receipt, products should be stored under the conditions indicated by the technical data sheet. Some products require refrigeration after shipping.

6. Reagent Claims: BD must be notified of any claims for: (i) overages, (ii) noncompliant or damaged reagent products, or (iii) billing or pricing discrepancies within 45 days of receipt of the reagent products or they shall be deemed accepted by Customer. BD must be notified of shortages within 45 days of the date of invoice. For damaged reagent products, at BD’s option, an authorization to return the goods may be issued or Customer may be asked to document the destruction of the products at Customer’s site.

7. Reagent Returns: BD Customer Service must be notified within 90 days after receipt of any request to return a reagent product. A return authorization is required for all returns. Not all requests for return will be granted: for example, in the case of a Customer's purchasing error or change in the order subsequent to shipping the product, authorization will not be granted. Special order and custom products, or products which cannot be resold, will not be authorized for return in the absence of a defect. BD may choose to verify any performance problems prior to authorizing return or replacement. All return shipping costs are to be paid by the Customer. Please contact BD_CS_Claims@bd.com to request authorization to return a product. Please contact the Customer Service department toll free within the U.S. at 844-8-BD LIFE (844-823-5433) for other information, or clarification of our policies.

8. Restocking Fee: All requests to return reagent products that do not have a verified performance problem will be subject to a restocking fee of 25% of the purchase price or a minimum of $25, whichever is greater. If BD makes a shipping error, the reagent product may be returned at BD expense and no restocking fee will apply.

9. Payment Terms: Terms are net 30 days from date of invoice. BD shall have the right to delay shipment or suspend performance under any agreement if payment under any agreement or order between the Customer and BD is not received when due or is rescinded. Customer warrants that it has funds or approved funding for all payments to be required under any purchase order placed or agreement executed with BD. If the Customer fails to pay any invoice when due, BD may also charge the Customer a late payment charge equal to the lesser of one and one-half percent (1½%), or the maximum permissible rate under applicable law, per month on the outstanding balance. If Customer is a tax-exempt agency, Customer shall submit a copy of its tax exemption certificate with its purchase order or fax a copy to BD, Attention: Credit Department at (201) 847-5334.

10. Product Use Limitations: BD sells products for research and clinical use. Research products are labeled for Research Use Only (RUO) and are not for use in diagnostic or therapeutic procedures. Products for clinical use are labeled as Analyte Specific Reagents (ASR) or for In Vitro Diagnostic Use (IVD). Analytical and performance characteristics are not established for Analyte Specific Reagents. BD is not liable for misuse of any product. All ASR and IVD products, and many RUO products, are manufactured in accordance with Good Manufacturing Practices (GMP) for devices under 21 CFR Part 820. The catalog includes a parenthetical notation indicating which RUO products are GMP manufactured. Note that all sales are to direct end users only and are not for resale.

11. Special Orders and Custom Configuration: Special orders and custom configuration products are warranted only to conform at the time of delivery to the carrier, the quantity and contents stated on the product label. There are no warranties, express or implied, that extend beyond the description of the label on the product. Customer recognizes that BD has manufactured the products at the instruction and to specifications provided by Customer and has not independently tested the products for any characteristics other than those set forth on the label. Customer takes all responsibility for confirming the appropriateness of the products for Customer's intended use. BD assumes that Customer has all rights necessary for the manufacture, use and sale of the products as they are pursuant to Customer's specifications and makes no claims or inquiries as to such rights. Customer agrees to indemnify and hold harmless BD against any claims or damages relating to the failure to have sufficient rights. BD’s sole liability in the event that a product does not conform to the quantity and contents stated on the product label is limited to either replacement of the products or refund of the purchase price. BD is not liable for property damage, personal injury or economic loss caused by the product. Notwithstanding anything to the contrary in these terms and conditions, BD makes no representations or warranties with respect to any materials provided by Customer for use with the products or as to the performance of the products when used with such materials. Research Use Only (RUO) custom products may be released without testing. Testing, where possible, may be available for an additional fee. Custom reagent orders are typically produced within six to eight weeks.  Specifications for the Products are as set forth in the Quote. BD specifications are set forth on the Custom Panel Approval Form referenced on the Quote.

12. Intellectual Property: All Intellectual Property in the Instrument Product and the Reagent Products and in respect of the Services is and shall remain the exclusive property of BD and/or its licensors. No rights in BD’s Intellectual Property are granted to the Customer or are to be implied from these terms and conditions.  No Services, including design technical support or advisory services, will be performed as works made for hire and BD retains full rights to design or market the same or similar designs for other customers.  “Intellectual Property” for the purpose of this condition shall mean all patents, copyright and related rights, trademarks, service marks, trade and business names, rights in designs, rights in computer software, database rights, know how, trade secrets and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights.  BD does not accept confidential information from its Customer other than pursuant to a confidential disclosure agreement executed by the parties. 

13. Information Provided to Third Party Suppliers: BD may provide Customer’s information to suppliers of reagents, suppliers of hardware and software included in its instruments, or to integrators or other subcontractors whom BD uses to manufacture or ship product to Customer. This information would be limited to product, purchase date, customer name and address, and would be used for warranty claim or recall purposes.

14. Proprietary Software BD FACSLink™ Software License and Warranties: In consideration of the purchase price Customer  pays for any instrument, BD hereby grants Customer a nonexclusive, nontransferable, limited license to use software and related documentation as applicable, licensed hereunder solely in connection with instrument purchased/leased under this Agreement.  Customer owns the media on which the software is recorded, but BD retains title to the software. This license allows Customer to use the software on a single computer and to make one copy of the software in machine readable form for internal business purposes only. BD FACSLink software is licensed to Customer pursuant to a license agreement that is agreed at the time of installation and that BD has the right to enforce. BD proprietary and BD FACSLink software contain copyrighted material, trade secrets, and other proprietary information. Customer shall not and shall not permit any user to: (i) circumvent or bypass any technological protection measures in or relating to an instrument; (ii) decompile disassemble, decrypt, hack, emulate, exploit, or reverse engineer or otherwise attempt to obtain or perceive the source code of software; (iii) modify or create any derivative work from software or documentation; (v) enable access to software by a third-party software application, except as expressly authorized by BD in writing; (vi) remove, alter or obscure any proprietary notice or legend from an instrument or documentation; (vii) permit use of an instrument by any person not qualified or not authorized to do so; or (viii) use an instrument in violation of any law or regulation.  BD does not warrant that the functions contained in the software will meet Customer’s requirements, or that the operation of the software will be uninterrupted or error-free, or that defects in the software will be corrected. Software, when purchased after the initial instrument purchase, will assume the warranty or Service Maintenance Agreement duration of the original instrument. If this purchase occurs during the last three months of the system warranty or Service Maintenance Agreement, or later, it will be considered a stand-alone purchase and will receive a three-month warranty from the date of installation or a four-month warranty from date of shipment, whichever occurs first. BD will replace, free of charge, any defective media provided that it is returned during the warranty period to BD. This limited warranty on the media runs only to the original Customer and cannot be transferred or sold. This warranty does not apply if the product has been damaged by accident, abuse, misuse, misapplication or if the product has been modified. Service for BD FACSLink software may be provided by Data Innovations, Inc. BD FACSLink uses Data Innovations' Instrument Manager™ software.  ALL SOFTWARE IS PROVIDED “AS-IS” AND IS NOT WARRANTED TO BE FREE OF BUGS OR VIRUSES OTHER THAN THAT BD WARRANTS THAT IT WILL NOT KNOWINGLY TRANSFER ANY VIRUS TO CUSTOMER.  CUSTOMER ACKNOWLEDGES THAT IT IS ITS RESPONSIBILITY TO MAINTAIN ANTI-VIRUS SOFTWARE AND PROCEDURES DESIGNED TO PROTECT THE INTEGRITY OF ITS NETWORK.

15. Data Security; Privacy: Customer hereby acknowledges and agrees that (i) it has read, reviewed and understands any and all product security white papers located at https://www.bd.com/en-us/support/product-security-and-privacy related to the instrument; (ii) any information contained in the product security white papers is for reference purposes only; and (iii) BD does not make any promises or guarantees to Customer that any of the methods or suggestions described in the product security white papers will protect data, programs and systems associated with the instrument; restore Customer’s systems; resolve any issues related to any malicious code or achieve any other stated or intended results. Customer hereby agrees to accept and exclusively assume any and all risk of utilizing or not utilizing any guidance described in this product security white paper. Furthermore, Customer represents, warrants, and covenants that (1) Customer’s use of the instrument does not and will not invade or violate privacy, personal or proprietary rights, or other common law or statutory right of any third party and (2) Customer has implemented reasonable and appropriate safeguards to protect data, programs and systems associated with the instrument in accordance with legal requirements and industry standards, including appropriate physical safeguards. BD incorporates a patch management program where security patch validations are performed quarterly and released annually for select BD manufactured instruments. Deployment of software patches are product dependent and may be deployed remotely or onsite by a field service engineer.  Customer shall maintain the privacy and confidentiality of Customer’s data and comply with applicable laws governing privacy of Customer’s data (including PHI), and for conducting and maintaining timely backup procedures to protect Customer’s data from loss or corruption. BD is not responsible for any archival, backup or disaster recovery services with respect to Customer’s data.

16. Third Party Software Warranty: Third party software, not developed by BD, will carry the warranty, if any, of the third-party software vendor (e.g. Microsoft®, Verity Software House), not of BD.

17. Instrument Warranties: BD warrants that its instruments will perform in accordance with the specification described in the catalog or in the case of custom instruments, the specifications agreed to at the time the order is taken. The warranty period for instruments is 12 months and covers service Monday through Friday 8:00 AM – 5:00 PM local time. The twelve month warranty will begin: (1) for instruments that come with BD provided installation upon installation or thirty days after the date of shipment, whichever occurs first, or (2) for instruments that are sold to be installed by the customer seven weekdays after the date of shipment. This warranty applies only to products purchased and installed in the United States by an authorized BD Biosciences service representative or another party approved by BD. For instruments that come with BD provided installation, BD will install its instrument after shipment or reimburse the purchaser for actual costs incurred to have a third party install the instrument. The maximum reimbursement to Customer for third-party installation varies with the type of instrument. Any third-party installer must be approved in writing by an authorized representative of BD prior to installation for warranty to become effective. Subject to the Service terms below, BD will replace or repair, at its option free of charge, any instrument or part, excluding consumable items, as listed in the current BD Biosciences catalog or Consumable Price List (as the same may be modified from time to time), which fails within the warranty period, due to defects in materials or workmanship, provided that the instrument has been operated at all times in accordance with the instruction manual and user's guide by, or under the direct supervision of, a certified operator who has attended the BD Biosciences Training Course for the instrument or completed the self-training prior to operating the instrument. Only the unexpired original warranty period on the instrument shall be in effect on any replacement parts, which may be new or reconditioned at the discretion of BD. Products not manufactured by BD are not covered by this warranty, but instead will carry any warranty direct from the specified manufacturer or supplier. For the avoidance of doubt, instrument products cannot be returned after shipment. Defects will be addressed in accordance with the standard warranty.

18. Options, Accessories, or Upgrades Warranties: BD offers warranties of varying periods on its options, accessories, software or upgrades. Those purchased at the same time as the instrument are included in the instrument warranty and will be covered by any subsequently purchased Service Maintenance Agreements, though upgrades are not automatically included. Options purchased after the initial instrument purchase will assume the remaining warranty or Service Maintenance Agreement of the original instrument, unless the purchase occurs during the last three months of the system warranty or Service Maintenance Agreement, or later, in which case it will be considered a standalone purchase and will receive a 90-day warranty from the date of installation or a 120-day warranty from the date of shipment, whichever occurs first.

19. Warranties:

A. Installation by an Authorized BD Biosciences Service Representative: Time and Material parts are warranted for 90 days after installation or 120 days after shipment, whichever is shorter. If a repairable part fails within the warranty period, it will be replaced at no charge. Labor and travel associated with the service visit is not covered and is considered billable.

B. Installation by Other Personnel: BD does not provide a warranty on parts not installed by an authorized BD Service representative. No returns will be accepted or credits issued for material ordered via the Technical Support Center or Customer Service Department.

C. Disclaimer Applicable to All Products and Services
THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES THAT BD MAKES WITH RESPECT TO THE PRODUCTS AND SERVICES.  BD MAKES NO FURTHER WARRANTY, EITHER EXPRESS OR IMPLIED WITH RESPECT TO ANY PRODUCT OR SERVICE, AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES FOR MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR ANY PARTICULAR PURPOSE.  UNDER NO CIRCUMSTANCES WILL BD OR ITS CONTRACTORS OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOST TIME, LOSS OF USE OF INSTRUMENT OR REAGENTS, LOSS OF PROFIT OR ANY OTHER DAMAGES RESULTING FROM THE BREAKDOWN OR FAILURE OF ANY INSTRUMENT OR DELAYS IN SERVICES OR THE INABILITY TO SERVICE ANY INSTRUMENT. BD’S SOLE OBLIGATION AND LIABILITY FOR PRODUCT DEFECTS SHALL BE, AT BD’S OPTION, TO REPAIR OR REPLACE SUCH DEFECTIVE PRODUCT OR REFUND TO CUSTOMER THE AMOUNT PAID BY CUSTOMER THEREFOR.  IN NO EVENT SHALL BD’S LIABILITY EXCEED THE CUSTOMER’S PURCHASE PRICE.

D. REAGENT PRODUCT LIMITED WARRANTY

Reagent Warranties: Reagent Products are warranted to conform to the description thereof on the label until the expiration date contained on the label.  Reagent Products will be shipped with a shelf life of at least 90 days unless otherwise specified.  In the event that Reagent Products do not so conform, they may be replaced as promptly as practicable, and Customer will destroy or return non-conforming products as requested by BD.

With respect to any custom reagents or customer instruments that were designed per a customer’s request, BD warrants that the design or customization has been created professionally and in good faith to respond to the customer’s request. BD does not warrant that the resulting reagents are suitable for the customer’s use, or that they are the best arrangement possible for Customer’s use.  

20. WARRANTY LIMITATIONS:

A. The warranties herein are valid provided that Products have been used and stored properly.  In particular:

B. All Products contain technical data sheets or manuals that describe appropriate storage conditions and other advice for maintaining the storing the Products.  The instruments must be serviced only by BD approved personnel or service providers and operated only by Customer staffs that are properly trained.  Failure to follow these instructions may void BD’s warranties.

C. Customers are responsible for running third party-recommended QC procedures for given library preparation methods prior to sequencing.

D. THE FOREGOING REMEDY SHALL BE SUBJECT TO CUSTOMER'S WRITTEN NOTIFICATION OF DEFECT AND, FOR REAGENT PRODUCTS, RETURN OF THE DEFECTIVE PRODUCT WITHIN THIRTY (30) DAYS OF PURCHASE.  THE FOREGOING REMEDY DOES NOT APPLY TO PRODUCTS THAT HAVE BEEN SUBJECTED TO MISUSE, NEGLECT, ACCIDENT OR MODIFICATION, OR IF DAMAGE OCCURS AS A RESULT OF THE FAILURE OF CUSTOMER TO FOLLOW SPECIFIC INSTRUCTIONS, INCLUDING THOSE IN BD’S INSTRUCTIONS FOR USE OR USER MANUAL.

E. THE ABOVE WARRANTIES RUN TO THE ORIGINAL PURCHASER ONLY DO NOT APPLY TO ANY PRODUCT THAT HAS BEEN SOLD OR TRANSFERRED TO ANY THIRD PARTY.

21. LIMITATION OF LIABILITY: BD's liability is limited to repair, replacement of the product or refund of the purchase price. Additional disclaimers may apply to custom products and such disclaimers will appear in the quotation or other documentation provided with a custom order. No warranties apply to products that have been misused or improperly maintained.

A. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL BD BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER SUCH DAMAGES ARE CHARACTERIZED IN TORT, NEGLIGENCE, CONTRACT, OR ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER BD HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF A LIMITED REMEDY, AND IN NO EVENT SHALL BD'S LIABILITY EXCEED  CUSTOMER’S PURCHASE PRICE.  CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT BD WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ON THE TERMS SET FORTH HEREIN WITHOUT SUCH LIMITATIONS OF LIABILITY.

B. CUSTOMERS USING PRODUCTS IN CONNECTION WITH SEQUENCING ACKNOWLEDGE THAT A FAILURE OF SOME OF THE PRODUCTS TO PERFORM MAY CAUSE SEQUENCING DATA TO BE INACCURATE AND BD IS NOT LIABLE THEREFOR.

C. CUSTOMER AGREES TO PERFORM ANY QC PROCEDURES RECOMMENDED IN THE INSTRUCTIONS FOR USE.

D. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER AGREES THAT BD WILL NOT BE LIABLE FOR ANY DAMAGES SUCH AS INACCURATE SEQUENCING, FLOW CYTOMETRY OR OTHER DATA OR ANY ASSOCIATED COSTS, DAMAGES, EXPENSES OR OTHER LIABILITIES, WHETHER OR NOT CUSTOMER PERFORMED QC PROCEDURE RECOMMENDED IN THE INSTRUCTIONS FOR USE.

E. BD shall have no liability to the Customer for a failure or delay to provide Services in the event of: (i) the use by the Customer of any product other than Products in conjunction with the Instrument Product; (ii) the defect arising because the Customer failed to follow BD's oral or written instructions as to the storage, use and servicing of the Instrument Product and Products or (if there are none) good trade practice regarding the same; (iii) the defect arising as a result of BD following any drawing, design or specification supplied by the Customer; (iv) the Customer altering or repairing such Instrument Product or Products without the written consent of BD; or (v) the defect arising as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions on the part of the Customer.

22. Indemnification: Customer acknowledges that it is fully responsible for its use of any BD Biosciences product and agrees to indemnify, defend, and hold harmless BD and its affiliates, officers, directors, employees, and agents against any and all third party liabilities arising from such use except to the extent such liabilities arise from the infringement of any BD Biosciences products (other than custom reagents or instruments) that infringe any valid U.S. patent of a third party when used in accordance with instructions.

23. Governing Law: Any order placed or contract made with BD shall be governed by the laws of the State of New Jersey and both parties hereby submit and waive all objections to the exclusive jurisdiction of the courts of New Jersey and the federal courts located in New Jersey.

24. Acceptance of Terms: If Customer finds the above terms not acceptable, Customer shall promptly return any products in the package in which they were received. Failure to promptly return the products or any use of the products constitutes acceptance of the above terms.

Exhibit B. Terms of Service for BD Biosciences Instruments

When BD Biosciences performs service pursuant to an instrument or parts warranty or a Service Maintenance Agreement, it will do so subject to the following terms and conditions.

I. General

A. These terms control all of the dealings between the parties relating to service provided pursuant to it.  Any other document or arrangement, including any terms and conditions included as part of a purchase order sent to BD by CUSTOMER, which is inconsistent with the terms of this document, is not a part of the contract for service set forth in this document.

B. Service Maintenance Agreements are not assignable by Customer and shall not pass to the benefit of any eventual transferee of the instrument(s) from Customer.

C. Acceptance of Customer's request for Service Maintenance Agreement is conditioned on agreement with all the terms and conditions set out herein.  By issuing a purchase order, Customer will be deemed to have accepted these terms.

D. Service Maintenance Agreements may not be terminated by Customer prior to the end of the term.

E. BD Biosciences products include BD Assurity Linc™, our secure remote support solution.  Service and maintenance will be conducted remotely to diagnose or resolve issues before Field Service Representatives are dispatch to site for repairs.

II. BD Responsibilities

A. Service To Be Performed:  With respect to the instrument(s) set forth in the quotation or Service Maintenance Agreement to which these terms and conditions relate (the "Term"), and subject to these terms and conditions, BD agrees to perform remote service or send a Field Service Representative (a "Representative") to perform (a) the number of preventive maintenance inspections indicated above and (b) unlimited remote support and onsite visits as reasonably requested by Customer to perform repairs. The Representative must be permitted access through BD Assurity Linc, BD’s secure portal, and given full and free access to the instrument(s).  In addition, BD may through an authorized service provider, provide service on components and software manufactured by third parties in accordance with the warranty of such third-party manufacturer. It is the responsibility of Customer to register all third-party products and software with the third party for purposes of warranty and end user license. BD does not provide service on computer workstation printers.  BD may repair or replace any instrument(s) at its discretion in satisfaction of its obligations hereunder.

B. Preventive Maintenance Inspections: During each preventive maintenance visit, the Representative will evaluate the instrument(s) performance and provide a preventative maintenance kit (if applicable) for use by BD Biosciences' Representative. Calibrations, alignments, lubrication and part replacement will be performed as deemed necessary by BD to maintain the instrument(s) operation substantially in accordance with the published technical specifications for the instrument.

C. Technical Support: Customer may obtain support by calling BD Biosciences' toll-free number which may be found through www.bdbiosciences.com. Customer may use the toll-free number to speak with a BD Biosciences Representative during working days between the hours of 8 AM and 12 AM Eastern Time, and may leave a message at other times.  BD shall provide the Services Monday through Friday, 9:00 a.m. to 5:00 p.m. (local time for the Customer), excluding holidays (“Working Hours”), and the Parties shall work together to schedule the Services at a time that is mutually convenient.  BD guarantees its response time for certain instrument(s), pursuant to the description of the instrument contained in the quotation or Service Maintenance Agreement.  Failure to meet the BD guaranteed response time shall result in a credit as Customer's sole remedy.  The amount of this credit is set forth in the description of the instrument contained on the quotation or Service Maintenance Agreement and such credits must be utilized no later than 90 days following the end of the term and may be used to purchase spare parts, consumable parts (excluding reagents and sheath fluid), applied toward the renewal cost of a Service Maintenance Agreement or applied towards the tuition fee for training courses offered by BD.  Technical Support information for Genomics instruments will be provided at time of delivery.

D. Parts: BD will provide all parts required to affect a repair covered under its service obligation, except for consumables and subject to the exclusions contained in Section III below.  All defective parts must be returned to BD.  The use of new or like-new parts will be at the discretion of BD and is not obligated hereby to provide parts for spares or inventory or service on any such parts.

E. Software Revisions: BD Biosciences may, at its discretion from time to time hereafter, issue revisions to its proprietary software at no charge. A charge may apply for upgrades to BD Biosciences proprietary software. Updates and revisions to third-party software are not provided by BD Biosciences.

F. Software and Firmware: BD warrants for the Agreement term that the software and firmware sold to Customer will conform to BD’s operation manuals current at the time of shipment to Customer when properly installed.  BD does not warrant that the software and firmware will operate uninterrupted or error-free.   Customer’s sole remedy for breach of this warranty is replacement by BD of the non-conforming software or firmware with conforming or updated software or firmware.

G. Shipping & Handling: Shipping & handling charges for replacement parts that are covered under Warranty or Service Maintenance Agreements will be at no charge to Customer.  Shipping & handling charges for reagents, consumables and priority parts shipments are specifically excluded and will be billed to Customer at the current rate.

III. Customer Responsibilities

A. Customer shall be responsible for providing and maintaining a proper environment, including utilities and site requirements, for the instrument(s). A Site Installation Guide, detailing this information, is provided to the Customer when the instrument(s) is purchased.  Customer acknowledges that the lasers in the Instrument may be exposed during Service and Customer agrees to take responsibility for providing an appropriate, closed area for Service in compliance with American National Standard for Safe Use of Lasers (ANSI Z136.1).

B. The Customer shall (i) co-operate with BD in all matters relating to the Services; (ii) be responsible (at its own cost) for preparing and maintaining the relevant premises for the installation of the Instrument Product and any supply of the Services, including preparing the site in accordance with BD’s facility guide and identifying, monitoring, removing and disposing of any hazardous materials from its premises in accordance with all applicable laws, before and during the supply of the Services at those premises; (iii) obtain and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the installation of the Instrument Product and the Services, in all cases before the date on which the installation or the Services are to start; (iv) keep the Instrument Product in good condition and shall not dispose of or use the Instrument Product other than in accordance with BD's written instructions or authorization; (v) inform BD of the Customer’s health and safety policy and any other Customer policies that apply to BD’s Representatives in the provision of the Services; (vi) report faults in the Instrument Product to BD as soon as possible after becoming aware of same; and (vii) take responsibility for any damage or service issues to the extent caused by the use of fluids not approved by or procured through BD.

C. Customer agrees not to alter the instrument(s) without prior consultation with and written approval from BD, or use any repair parts other than those supplied or specified by BD.

D. Customer agrees to have the instrument(s) operated at all times in accordance with the Instruction Manual by or under the direct supervision of a qualified operator who has completed the BD Biosciences Training Course.

E. Customer agrees to maintain a safe work environment and to comply with all applicable laws, rules and regulations relating to safety in order to ensure the safety of all Representatives and other BD employees and agents who enter Customer's premises.  BD may, from time to time in response to a concern over the safety of Representatives, visit Customer 's facilities in which the Representative and other BD employees and agents perform Services hereunder in order to audit safety compliance.  Such audit would only occur during working hours and at a time reasonably agreed.  BD, its affiliates, personnel, agents and subcontractors shall not be required to enter potentially hazardous areas and BD reserves the right to determine whether and under what circumstances its personnel, agents or subcontractors shall enter any premises.  In no event will BD be obligated to perform Services if it is not, in its sole discretion, satisfied with respect to safety.

F. In the event that the instrument(s) being serviced has at any time been operated in a location that falls into the category of a Biosafety Level 4 laboratory (a "BSL 4" laboratory) according to the then-current edition of "Biosafety in Microbiological and Biomedical Laboratories" published by the U.S. Department of Health and Human Services, or that would in BD's opinion fall into such category were it located in the United States, it shall be the responsibility of Customer to remove from such laboratory or other facility the instrument(s) and decontaminate to the satisfaction of BD, in its sole discretion, before any work is performed on the instrument(s).  All costs associated with such removal, decontamination, and re-installation shall be borne by Customer. With respect to laboratories operated under the designation Biosafety Level 3 (A "BSL 3" laboratory), BD reserves the right to evaluate the conditions existing therein.  Customer agrees and shall render full cooperation, including but not limited to affirmative disclosures related to any hazards in such facilities.  BD may conduct a risk assessment and require remediation to its satisfaction before any work is performed on an instrument(s) located in a BSL 3 laboratory. In any event, if BD determines that laboratory procedures and policies are inadequate to provide a safe environment for service personnel, BD reserves the right to refuse service support until the situation is rectified to its satisfaction including with respect to, any injuries to the personnel, agents and subcontractors of BD and its affiliates.  Customer agrees to notify BD of its status as a BSL 3 or BSL 4 laboratory and to provide notice of all relevant protocols and any changes thereto. Customer agrees and shall render full cooperation, including but not limited to affirmative disclosures related to any hazards in such facilities. All required safety training, personal protective equipment, instrument test equipment and necessary tools required for instrument service located in a BSL 3 laboratory, must be supplied by the Customer. BD reserves the right to discontinue any and all BSL3 laboratory instrument service until appropriate personal protective equipment and tools are furnished by the Customer. Calibration of the tools and test equipment are the sole responsibility of the Customer. No parts may be returned to BD and must be disposed of by the Customer. BD field service personnel are not required to take BD tools and calibration equipment into the BSL 3 laboratory space. If tools are not available, BD is not obligated to provide on-site repair service. In the event the Customer is unable to make the instrument available for scheduled preventative maintenance in a 60-day period from the initial planned service date, Customer waives the right to have that scheduled service visit performed during the contract year or thereafter. No compensation will be provided by BD for any missed preventative maintenance services.

G. Customer agrees to indemnify and hold harmless BD, its affiliates and their employees, agents, officers and directors (the "BD Indemnified Parties") from and against (a) any and all actions or claims brought by a third party relating to the services and parts supplied hereunder unless Customer can show that such third-party action involves death or personal injury and results solely from BD's gross negligence or willful misconduct, in which case Customer agrees to indemnify and hold the BD Indemnified Parties harmless from and against any amounts required to be paid in excess of the amounts actually paid by Customer to BD hereunder;  and (b) any and all liability relating to Customer 's failure to comply with Section III.  Customer 's indemnification obligations hereunder shall include the payment of reasonable attorney's fees.

H. Upon purchase of a Service Maintenance Agreement, Customer is obligated for the duration of the agreement specified and is responsible for payment in full. Service Maintenance Agreements are not cancelable.

IV. Exclusions

A. Service does not include consumable items (except preventive maintenance kits as applicable).

B. Consumable items are listed in BD Biosciences product catalog under spare parts and consumables section.  Any consumable items replaced by BD during the course of a service call or inspection will be billed to the Customer at BD's then current list price.

C. Neither the warranty nor the Service Maintenance Agreement provide for Service relating to damage caused to the instrument(s) or any part thereof, by accident, the elements, failure of electrical power, Acts of God, the use of unauthorized parts or reagents or negligence are not covered under this Agreement.  Work performed by BD on the instrument(s) made necessary as a result of such causes shall be billed to the Customer at BD's then prevailing rate for parts, labor and travel expenses.

D. Any damage caused during transportation for the service of a depot repaired product is not covered under this Agreement.

E. Defacement of the Product’s serial number will void this Agreement.

F. Any incorporation of the Product under this Agreement into a system without BD’s approval will void this Agreement.

G. Any work to be performed by BD on a weekend or BD designated holiday is subject to availability and will be billed at weekend/holiday rates in effect at the time of the service, unless otherwise indicated by Service Maintenance Agreement.

H. The warranty and the Service Maintenance Agreement do not provide for Service on the computer workstation printer.

I. Service may be discontinued on any Third-Party software or hardware that is not currently marketed by BD.

J. The warranty and the Service Maintenance Agreement do not provide for Service relating to a failure to comply with Section III or any other damage to the instrument(s) resulting from Customer 's negligence.

V. Service Parts Warranty

A. All parts supplied by BD during the warranty period or Service Maintenance Agreement period are warranted against defects in material and workmanship until the expiration date of the term and all service shall be performed in a professional manner.  BD's sole responsibility under this warranty shall be to repair or replace parts found to be defective. The Customer must make any claim for breach of this warranty within ninety (90) days of the date the Services were performed, and prior to any repair, change, or modification to any part of the Instrument Product. BD makes no other warranties of any kind whatsoever, express or implied.  CUSTOMER'S SOLE REMEDY FOR ANY CLAIM HEREUNDER, WHETHER SUCH CLAIM IS MADE UNDER CONTRACT, TORT, OR ANY THEORY OF LAW, SHALL BE THE REPAIR OR REPLACEMENT OF ANY PART IN QUESTION.

B. BD warrants that the Services that it provides to the Customer will be in accordance with the generally accepted standards prevailing in the industry.

C. Disclaimer Applicable to All Services

THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES THAT BD MAKES WITH RESPECT TO THE SERVICES.  BD MAKES NO FURTHER WARRANTY, EITHER EXPRESS OR IMPLIED WITH RESPECT TO ANY SERVICE, AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES FOR MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR ANY PARTICULAR PURPOSE.  UNDER NO CIRCUMSTANCES WILL BD OR ITS CONTRACTORS OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOST TIME, LOSS OF USE OF INSTRUMENT OR REAGENTS, LOSS OF PROFIT OR ANY OTHER DAMAGES RESULTING FROM THE BREAKDOWN OR FAILURE OF ANY INSTRUMENT OR DELAYS IN SERVICES OR THE INABILITY TO SERVICE ANY INSTRUMENT.  IN NO EVENT SHALL BD’S LIABILITY EXCEED THE CUSTOMER’S PURCHASE PRICE.

VI. Miscellaneous

A. Limitation of Liability: BD's liability is limited to repair, replacement of the product or refund of the purchase price. Additional disclaimers may apply to custom products and such disclaimers will appear in the quotation or other documentation provided with a custom order. No warranties apply to products that have been misused or improperly maintained.

B. Governing Law: Any order placed or contract made with BD shall be governed by the laws of the State of New Jersey and both parties hereby submit and waive all objections to the exclusive jurisdiction of the courts of New Jersey and the federal courts located in New Jersey.

C. Variations and Waiver: Any variation of these Conditions shall be in writing and signed by or on behalf of the Parties. Any waiver of any right under these Conditions is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Any waiver by either Party of any breach of, or any default under, any provision of these Conditions by the other Party will not be deemed as a waiver of any subsequent breach or default and will in no way affect the other terms of these Conditions. Failure to exercise or delay by either Party in exercising any right or remedy provided under these Conditions or by law shall not constitute a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy. No single or partial exercise of any right or remedy under these Conditions shall prevent or restrict the further exercise of any other right or remedy.

D. Severance: If any provision of these terms and conditions (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

VII. Uptime Guarantee (available on select standard instruments only):  In the event Customer has purchased Service Plus or Service Premier Plans, the following shall apply for the duration of such Service Plan Term.

A. General.  During the applicable Service Term, BD shall provide to Customer the uptime guarantee specified below ("Uptime Guarantee") on the Equipment listed on the quote.  If Customer does not meet its responsibilities and obligations described in the Agreement and any applicable Service Agreement, then Customer is not entitled to this Uptime Guarantee. If the instrument fails to achieve the Uptime Percentage (as defined below), then Customer, as its sole and exclusive remedy, will receive one of the following: i) a credit for purchase of future Consumables; or ii) a credit towards payment of future Service Plan invoices (individually or collectively, "Uptime Guarantee Credit").

B. Definitions.

"Measurement Period" means the period for determining Uptime Percentage. Each Measurement Period shall begin on the contract start date and extend for twelve (12) months and renew on the annual anniversary of such date.

"Base Hours" will be calculated during the Measurement Period. The Base Hours will be 6,072, to account for 52 weeks in a 12-month period, in which weekends and BD holidays are subtracted.

"Downtime" means the time that the instrument is unable to be utilized by Customer during the Base Hours of any Measurement Period solely due to BD's product quality, materials, or service performance failure.

Emergency cases are issues that result in work stoppage, make it impossible to process samples, serious compliance issues or issues which cause danger or health and safety concerns for employees.  Emergency is enforced when BD standard Quality Control fails and if the customer cannot use the instrument due to error message.  For emergency cases, measurement of Downtime begins when the service workorder has been created and ends when the instrument is repaired.

Non-emergency cases are issues that do not result in work stoppage, do not impede the processing of samples, are not serious compliance issues and do not cause danger to people.  Non-emergency is enforced when BD standard Quality Control passes with warnings.  For non-emergency cases, measurement of Downtime begins when the BD Representative arrives at the instrument location and ends when the instrument is repaired.

Downtime does not include time due to planned maintenance service (including Preventative Maintenance); restricted access to Equipment; scheduled and routine Customer maintenance; operator error or misuse; improper Customer maintenance; force majeure events; use of the Equipment or Consumables in a manner that violates any of BD's Limited Warranty provision; installation of Upgrades and Updates; downtime due to Baker hood issues; or an occurrence or condition excluded under the Agreement.  Downtime does not include time that the instrument is available for use or if Customer declines telephone troubleshooting.

"Uptime Hours" is determined as follows: Base Hours - Downtime = Uptime Hours.

"Uptime Percentage" is determined as follows: (Uptime Hours/Base Hours) x 100 = Uptime Percentage.

C. Uptime Guarantee Credit.  If the Uptime Percentage as described below is not achieved for the instrument then the specified Uptime Guarantee Credit will apply, as suggested above.

• Basic Service Plans: not eligible for an Uptime Guarantee Credit
  
• Service Plus Plan: if 95% uptime guarantee is not achieved customer receives 5% of the Service Plan price for the same serial number (allocated year to year for multi-year contracts). The service plan price is the total price of the service contract divided by the number of contract years.
  
• Service Premier: if 98% uptime guarantee is not achieved, 10% of the Service Plan price for the same serial number (allocated year to year for multi-year contracts). The service plan price is the total price of the service contract divided by the number of contract years.

D. Reports.  Uptime Percentage performance reports will be provided at the Customer's request at the end of the Measurement Period.  If mutually warranted, BD and customer will organize a quarterly review of performance.  To receive any applicable Uptime Guarantee Credit, Customer must notify BD in writing that the Uptime Percentage was not achieved for the instrument within thirty (30) days after the end of a Measurement Period.

E. Warranty Disclaimer.  BD's complete Uptime Guarantee obligations to Customer are described in this section.  BD provides no warranties under this Uptime Guarantee.  NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES TO THIS UPTIME GUARANTEE.

F. Limitations on Remedies and Damages.  BD's total liability, if any, and Customer's sole and exclusive remedy with respect to this Uptime Guarantee and BD performance hereunder is limited to the remedies stated herein.