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BD Biosciences Product Terms and Conditions

1. Order Acceptance: The following outline the terms and conditions upon which BD Biosciences accepts orders for goods and services and constitutes the 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 sent to BD Biosciences by the BUYER. By issuing a purchase order, BUYER is deemed to have accepted these terms.

2. Pricing: List prices can be obtained by visiting the BD Biosciences website www.bdbiosciences.com or contacting Customer Service toll-free at (877) 232-8995. BD Biosciences reserves the right to change pricing without notice.

3. Standard 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: Typically orders are shipped Monday through Thursday for next day delivery in the U.S. Orders received on Fridays are shipped Monday for next day delivery. Saturday delivery may be requested at additional charge. All shipments are freight on board (FOB) shipping point. BD Biosciences 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: In an effort to be environmentally friendly, BD Biosciences consistently seeks ways to reduce solid waste and ships products when possible using environmentally compatible and recyclable containers without ice pack. Shipping experiments have been performed that show most reagents are stable when shipped at ambient temperature. Products shipped with dry ice or ice packs are shipped according to their appropriate shipping conditions. Upon receipt, product should be stored under the conditions indicated by the technical data sheet.

6. Returned Goods: BD Biosciences should be notified immediately by phone, followed by written documentation of any claims for shortages, incorrect items, or defects. All returns must be authorized by BD Biosciences. Please contact the Customer Service department toll free within the U.S. at (877) 232-8995 to request authorization to return, information, or clarification of our policies.

7. Restocking Fee: In the case of a purchasing error or change in order subsequent to shipping the product, BD Biosciences will charge a 25% restocking fee or minimum of $25, whichever is greater. All return shipping costs are to be paid by the Buyer. If BD Biosciences makes a shipping error, the product can be returned at BD Biosciences’ expense and no restocking fee will apply.

8. Payment Terms: Terms are net 30 days from date of invoice. BD Biosciences shall have the right to delay shipment or suspend performance under any agreement, if payment under any agreement or order between Buyer and BD Biosciences is not received when due or is rescinded. Buyer warrants that it has funds or approved funding for all payments to be required under any purchase order placed or agreement executed with BD Biosciences. If Buyer fails to pay any invoice when due, BD Biosciences may also charge Buyer a late payment charge equal to the lesser of one and one-half percent (1½%), or the maximum permissible rate under California law, per month on the outstanding balance. If you are a tax-exempt agency, please submit a copy of your tax exemption certificate with your purchase order or fax a copy to BD Biosciences, Attention: Credit Department at (408) 954-2690.

9. Product Use Limitations: BD Biosciences 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 Reagent (ASR) or for In Vitro Diagnostic Use (IVD). Analytical and performance characteristics are not established for Analyte Specific Reagents. BD Biosciences 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.

10. 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. Buyer recognizes that BD Biosciences has manufactured the products at the instruction and to specifications provided by Buyer and has not independently tested the products for any characteristics other than those set forth on the label. Buyer takes all responsibility for confirming the appropriateness of the products for Buyer's intended use. BD assumes that Buyer has all rights necessary for the manufacture, use and sale of the products as they are pursuant to Buyer's specifications and makes no claims or inquiries as to such rights. Buyer agrees to indemnify and hold harmless BD Biosciences against any claims or damages relating to the failure to have sufficient rights. BD Biosciences' 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 Biosciences 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 Buyer 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, is available for an addition fee. Custom orders are typically produced within six to eight weeks, and carry no warranty. Note all sales are for direct end-user use only and are not for resale.

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

12. Reagent Warranties: BD Biosciences products are warranted only to conform to the quantity and contents stated on the label at the time of delivery to the Buyer, or, with respect to custom products; the specifications agreed with the customer at the time the order is taken.

13. Software Warranties: BD Biosciences guarantees that its proprietary software will work on computer platforms sold by BD Biosciences provided the operating system or hardware is not modified or changed in any way. In consideration, for the purchase price, the application and system software and related documentation are licensed to you by BD Biosciences. You own the media on which the software is recorded, but BD Biosciences retains title to the software. This license allows you to use the software on a single computer and to make one copy of the software in machine readable form for backup purposes only. The Software contains copyrighted material, trade secrets, and other proprietary information, and in order to protect them, you may not decompile, reverse engineer, disassemble, or reduce the software to human-perceivable form. The software and related documents are provided “AS IS” and without warranty of any kind. BD Biosciences does not warrant that the functions contained in the software will meet your 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 maintenance service agreement duration of the original instrument. If this purchase occurs during the last three months of the system warranty or maintenance service 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 Biosciences will replace, free of charge, any defective media provided that it is returned during the warranty period to BD Biosciences. This limited warranty on the media runs only to the original Buyer 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. Optional software, not developed by BD Biosciences, will be warranted and supported by the third party software vendor (e.g. Microsoft, Verity Software House), not by BD Biosciences.

14. Instrument Warranties: BD Biosciences warrants that its flow cytometry 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 upon installation or thirty days after the date of shipment, whichever occurs first. Only the original BUYER of the instrument may enforce this warranty and 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 Biosciences. BD Biosciences 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 BUYER for third- party installation varies with the type of instrument. The 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 Biosciences 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. The warranty terms for each type of instrument are set forth below and are described in the Service terms section of this document. 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 Biosciences. Products not manufactured by BD Biosciences are not covered by this warranty, but instead will carry any warranty direct from the specified manufacturer or supplier.

    Instrument Model	Maximum Installation Reimbursement	Warranty Period	Preventive Maintenance Visits during Warranty	Response Time Guarantee	Response Time Credit
    BD FACSCalibur™	$1000	1 Year	1	24 Hours	$500
    BD FACSCanto™	$1000	1 Year	2	24 Hours	$500
    BD FACSArray™	$ 500	1 Year	1	None	N/A
    BD FACSAria™	$1500	1 Year	1	48 Hours	$500
    BD FACSVantage™ BD FACSVantage™SE	$1500	1 Year	1	48 Hours	$500
    BD FACSCount™	N/A	1 Year	None	24 Hours	$500
    BD™ LSR II	$1500	1 Year	1	48 Hours	$500
    BD Imagn™	N/A	1 Year	1	24 Hours	$500
    BD FACS™ Lyse Wash Assistant	N/A	varies	None	None	N/A
    BD™ Sample Prep Assistant II	N/A	varies	1	24 Hours	$500
    BD FACS™ Loader	N/A	varies	None	None	N/A
    BD™ High Throughput Sampler	N/A	varies	None	None	N/A

15. Options, Accessories, or Upgrades Warranties: BD Biosciences 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 maintenance service agreements, though upgrades are not automatically included. Options purchased after the initial instrument purchase will assume the remaining warranty or maintenance service agreement of the original instrument. Unless the purchase occurs during the last three months of the system warranty or maintenance service 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.

16. Spare Parts 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 Biosciences 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.
    
    Disclaimer Applicable to All Warranties
    THE FOREGOING ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES WILL BD BIOSCIENCES OR ITS CONTRACTORS OR AGENTS BE LIABLE TO BUYER 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.

17. Limitation of Liability: BD Biosciences’ 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.

18. Indemnification: Buyer acknowledges that it is fully responsible for its use of any BD Biosciences product and agrees to indemnify, defend, and hold harmless BD Biosciences 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.

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

20. Acceptance of Terms: If the above terms are not acceptable to you, 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.

TERMS OF SERVICE FOR BD BIOSCIENCES™ INSTRUMENTS

During Warranty Period and Term of Service Maintenance Agreement

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

1. General
   1. 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 BIOSCIENCES by BUYER, which is inconsistent with the terms of this document, is not a part of the contract for service set forth in this document.
   2. Service Maintenance Agreements are not assignable by BUYER and shall not pass to the benefit of any eventual transferee of the INSTRUMENT(s) from BUYER.
   3. Acceptance of BUYER’s request for Service Maintenance Agreement is conditioned on agreement with all the terms and conditions set out herein. By issuing a purchase order, BUYER will be deemed to have accepted these terms.
   4. Service Maintenance Agreements may not be terminated by BUYER prior to the end of the term.

2. BD Biosciences Responsibilities

1. Service To Be Performed: With respect to the INSTRUMENT(s) set forth in the quotation or Maintenance Service Agreement to which these terms and conditions relate (the “Term”), and subject to these terms and conditions, BD Biosciences agrees to send a Field Service Representative (a “Representative”) to perform (a) the number of preventive maintenance inspections indicated above and (b) unlimited visits as reasonably requested by BUYER to perform repairs. The Representative must be given full and free access to the INSTRUMENT(s). In addition, BD Biosciences 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 BUYER to register all third party products and software with the third party for purposes of warranty and end user license. BD BIOSCIENCES does not provide service on computer workstation printers. BD Biosciences may repair or replace any INSTRUMENT(s) at its discretion in satisfaction of its obligations hereunder.
2. Preventive Maintenance Inspections: During each preventive maintenance visit the Representative will evaluate 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 Biosciences to maintain the INSTRUMENT(s) operation substantially in accordance with the published technical specifications for the INSTRUMENT.
3. Technical Support: BUYER may obtain support by calling BD Biosciences’ toll free number which may be found through www.bdbiosciences.com. BUYER may use the toll-free number to speak with a BD Biosciences Representative during working days between the hours of 8AM and 12AM Eastern Time, and may leave a message at other times. If efforts to correct problems by telephone are unsuccessful and on-site service is requested, a BD Biosciences Representative will be dispatched to BUYER's location. BD Biosciences guarantees its response time for certain INSTRUMENT(s), pursuant to the description of the INSTRUMENT contained in the quotation or maintenance service agreement. Failure to meet the BD Biosciences guaranteed response time shall result in a credit as BUYER’s sole remedy. The amount of this credit is set forth in the description of the INSTRUMENT contained on the quotation or maintenance service 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 Maintenance service Agreement or applied towards the tuition fee for training courses offered by BD Biosciences.
4. Parts: BD Biosciences 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 Biosciences. The use of new or like-new parts will be at the discretion of BD Biosciences and is not obligated hereby to provide parts for spares or inventory or service on any such parts.
5. 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.
6. Shipping & Handling: Shipping & Handling charges for replacement parts that are covered under Warranty or Maintenance service agreements will be at no charge to BUYER. Shipping & handling charges for reagents, consumables and priority parts shipments are specifically excluded and will be billed to BUYER at the current rate.

3. Buyer Responsibilities

1. BUYER 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 BUYER when the INSTRUMENT(s) is purchased.
2. BUYER agrees not to alter the INSTRUMENT(s) without prior consultation with and written approval from BD Biosciences, or use any repair parts other than those supplied or specified by BD Biosciences.
3. BUYER 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.
4. BUYER 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 BUYER’s premises. BD Bioscience may, from time to time in response to a concern over the safety of Representatives, visit BUYER’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 Biosciences, its affiliates, personnel, agents and subcontractors shall not be required to enter potentially hazardous areas and BD Biosciences reserves the right to determine whether and under what circumstances its personnel, agents or subcontractors shall enter any premises. In no event will BD Biosciences be obligated to perform Services if it is not, in its sole discretion, satisfied with respect to safety.
5. 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 Biosciences’ opinion fall into such category were it located in the United States, it shall be the responsibility of BUYER to remove from such laboratory or other facility the INSTRUMENT(s) and decontaminate to the satisfaction of BD Biosciences, 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 BUYER. With respect to laboratories operated under the designation Biosafety Level 3. (A “BSL 3” laboratory), BD Biosciences reserves the right to evaluate the conditions existing therein. BUYER agrees and shall render full cooperation, including but not limited to affirmative disclosures related to any hazards in such facilities. BD Biosciences 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 Biosciences determines that laboratory procedures and policies are inadequate to provide a safe environment for service personnel, BD Biosciences 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 Biosciences and its affiliates. BUYER agrees to notify BD Biosciences of its status as a BSL 3 or BSL 4 laboratory and to provide notice of all relevant protocols and any changes thereto. BUYER agrees and shall render full cooperation, including but not limited to affirmative disclosures related to any hazards in such facilities.
6. BUYER agrees to indemnify and hold harmless BD BIOSCIENCES, 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 BUYER can show that such third party action involves death or personal injury and results solely from BD Bioscience’s gross negligence or willful misconduct, in which case BUYER 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 BUYER to BD BIOSCIENCES hereunder; and (b) any and all liability relating to BUYER’s failure to comply with Section II. With respect to laboratories operated under the designation Biosafety Level 3, (a “BSL 3” laboratory) BD BIOSCIENCES reserves the right to evaluate the conditions existing therein. BUYER agrees and shall render full cooperation, including but not limited to affirmative disclosures related to any hazards in such facilities. BD BIOSCIENCES will conduct a risk assessment and require remediation to its satisfaction before any work is performed on an INSTRUMENT(s) BSL 3 laboratory. BUYER’s indemnification obligations hereunder shall include the payment of reasonable attorney’s fees.
7. Upon purchase of a maintenance service agreement, BUYER is obligated for the duration of the agreement specified and is responsible for payment in full. Maintenance service agreements are not cancelable.

4. Exclusions

1. Service does not include consumable items (except preventive maintenance kits as applicable).
2. Consumable items are listed in BD Biosciences product catalog under spare parts and consumables section. Any consumable items replaced by BD Biosciences during the course of a service call or inspection will be billed to the BUYER at BD Biosciences' then current list price.
3. Neither the warranty nor the maintenance service 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 Biosciences on the INSTRUMENT(s) made necessary as a result of such causes shall be billed to the BUYER at BD Biosciences' then prevailing rate for parts, labor and travel expenses.
4. Any work to be performed by BD Biosciences on a weekend or BD Biosciences 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 maintenance service agreement.
5. The warranty and the maintenance service agreement do not provide for Service on the computer workstation printer.
6. The warranty and the maintenance service agreement do not provide for Service relating to a failure to comply with Section II or any other damage to the INSTRUMENT(s) resulting from BUYER’s negligence.

5. Service Parts Warranty

1. All parts supplied by BD Biosciences during the warranty period or maintenance service 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 Biosciences’ sole responsibility under this warranty shall be to repair or replace parts found to be defective. BUYER’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.

   Disclaimer Applicable to All Warranties
   THE FOREGOING ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES WILL BD BIOSCIENCES OR ITS CONTRACTORS OR AGENTS BE LIABLE TO BUYER 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.