1.1. These Service Terms (“Terms”) along with [the applicable Service Exhibit and] the terms indicated on the quotation govern the Service of Equipment by BioSurplus. These Terms apply unless Buyer has a separate agreement with BioSurplus that governs the Service of Equipment from BioSurplus (“Signed Agreement”). To the extent of any conflict between these Terms or a Signed Agreement and the terms of the applicable Service Exhibit, the terms of the applicable Service Exhibit will control and take precedence.
1.2. In these Terms:
Buyer means the person, firm, company or other organization who or which has ordered Services from BioSurplus;
BioSurplus means BioSurplus, Inc., a California corporation;
Contract means the contract for the provision of Services between BioSurplus and the Buyer as may be further evidenced by BioSurplus’ final written offer, quotation or order acknowledgement and no prior proposals, statements, representations or conditions will be binding on either party;
Equipment means all electronic equipment, hardware and other electronic or mechanical items in relation to which Services are to be provided, excluding any consumables and spare parts sold separately, unless otherwise agreed;
Parts means all items agreed to be supplied by BioSurplus in connection with the Services other than the Equipment and Software, including, but not limited to, spare parts;
Services means all advice given and services performed by BioSurplus; and
Software means any firmware, software or data compilations (i) identified in the Contract or (ii) provided to Buyer by BioSurplus in connection with the Services. For the avoidance of doubt, Software shall not include any “open source” firmware, software or data compilations.
1.3. These Terms shall be incorporated into the Contract and shall apply to the exclusion of any conditions of the Buyer. These Terms may not be varied or waived except with the express written agreement of BioSurplus. The failure of BioSurplus to enforce its rights under the Contract at any time, for any period of time, shall not be construed as a waiver of any such rights.
2. Prices and Quotations The price of the Parts and/or Services will be BioSurplus’ quoted price, inclusive of any duties, but exclusive of value added or other taxes. All quotations issued by BioSurplus for the supply of Parts and/or Services shall remain open for acceptance for the period stated in the quotation or, if none is stated, for sixty (60) days. In all other cases, prices payable are those currently in effect in BioSurplus’ then current price list. Unless otherwise agreed in writing, extra charges will apply for handling, freight, and packaging.
3.1 Unless otherwise agreed in writing, payment in full shall be made to BioSurplus in U.S. dollars, no later than thirty (30) days from the date of invoice.
3.2 In the event of late payment, BioSurplus reserves the right: (i) to suspend deliveries and/or cancel any of its outstanding obligations; and (ii) to charge interest at the lower of (a) an annual rate equal to twelve percent (12%) or (b) any applicable maximum statutory rate on all unpaid amounts calculated on a day to day basis until the actual date of payment.
4.1 When requesting Services, the Buyer must communicate to BioSurplus’ Service Department, in such suitable manner as BioSurplus may indicate (a) details of the Equipment defect or maintenance required and (b) the exact location of the Equipment. Service is available during BioSurplus’ normal business hours Monday to Friday, excluding public holidays, unless specifically otherwise agreed in writing.
4.2 BioSurplus will use all reasonable efforts to commence the Services within such time as may be expressly agreed with BioSurplus; but will not be liable for any losses incurred by the Buyer in respect of any failure or delay in this respect by BioSurplus.
4.3 BioSurplus undertakes to diagnose any defects in the Equipment and use all reasonable efforts to promptly repair such defects. Where practical this will be carried out at the Buyer’s premises. Defective parts will be replaced as deemed necessary by BioSurplus at Buyer’s costs. BioSurplus reserves the right to use refurbished parts as replacements but, if so, shall use all reasonable efforts to ensure that all such parts shall conform with the specifications given by the manufacturer and shall have the same operating features as new parts. Any defective parts which have been replaced shall become the property of BioSurplus.
4.4 The Buyer shall notify BioSurplus in writing within five (5) working days of delivery of any Parts of any short delivery or defects reasonably discoverable on careful examination. BioSurplus’ sole obligation shall be, at its option, to replace or repair any defective Parts or refund the purchase price of any undelivered Parts.
4.5 The Buyer is responsible for, within the term of the Contract, contacting BioSurplus to schedule any Preventative Maintenance (“PM”) visit and making the Equipment reasonably available for such purposes. If the PM is not scheduled during the Contract period, to the extent not prohibited by applicable law, BioSurplus will have no further obligation to perform said PM once the Contract has expired and will have a right to retain the purchase price for the PM.
4.6 If the Buyer has purchased a product or Service including remote access support or if the Equipment can be maintained or repaired through remote access, the Buyer shall permit BioSurplus to connect to the Equipment by remote access as may be beneficial to the performance of maintenance or repair activities in fulfillment of BioSurplus warranty obligations or as otherwise agreed to by the parties. This may include automatic software downloads and proactive monitoring and access to performance data related to the Equipment to gather and use product and resource usage data for benchmarking and quality initiatives. Any data collected by BioSurplus will be used in accordance with all applicable federal, state and local laws and regulations and in a manner that will maintain confidentiality.
4.7 BioSurplus agrees to ensure that industry standard tools and processes are used in connection with the Services, aimed at ensuring that BioSurplus does not negligently introduce any viruses, trojan horses, worms and similar code on the Equipment. If Buyer’s data is lost or corrupted as a direct result of BioSurplus’ negligence in providing the Services, BioSurplus shall promptly make all reasonable efforts to reconstruct such data at BioSurplus’ cost from a suitable, working back-up to be provided by the Buyer, but BioSurplus shall have no additional responsibility or liability in relation thereto.
4.8 BioSurplus may select qualified and reputable subcontractors to perform Service.
5. Condition of Equipment Only equipment in normal working condition may be accepted for service under this Contract. To establish equipment condition, an on-site inspection by a BioSurplus Service Engineer may be required at the Buyer’s expense, and all repairs necessary to return the Equipment to normal working condition must be performed before a Service Contract can be issued. Any work or parts so necessitated will be subject to BioSurplus’ standard service charges applicable at that time.
6.1 This Contract does not include the following: (i) the repair, replacement, or disposal of any accessories or power supply equipment, refrigeration units, computers, printers, keyboards, and video included with the Equipment; or (ii) consumable items or parts deemed necessary for the normal operation of the Equipment covered, including but not limited to, lamps, lasers, filters, electrodes, flow cell, pump seals, valves, tubing, fluids, and any other disposable supply or saleable items, unless explicitly listed in the Contract.
6.2 This Contract does not include service made necessary by: (i) willful damage or negligence of the Buyer or its employees or agents; (ii) modifications to alter system operations; (iii) operation of the Equipment outside the instrument specifications as prescribed in the Equipment instruction manuals; (iv) service alterations, maintenance, replacement of spare parts or relocation of the Equipment other than by BioSurplus’ employees; or (v) damage due to liquids, moisture, freezing, computer viruses or other damage incurred by the acts or omissions of the Buyer or its employees or agents.
6.3 Any items or service outside the scope of this Contract requested by the Buyer will be subject to BioSurplus’ standard service charges applicable at that time.
7. General Warranty
7.1 Sections 7.2-7.4 shall apply in the event no other specific warranty has been agreed in the Contract.
7.2. Parts – BioSurplus warrants that its Parts meet BioSurplus’ specifications at the time of delivery. All warranty claims on Parts must be made in writing within ninety (90) days of receipt of the Parts. BioSurplus’ sole liability and Buyer’s exclusive remedy for a breach of this warranty is limited to repair, replacement or refund at the sole option of BioSurplus.
7.3 Services – BioSurplus warrants that all Services will be carried out with reasonable care and skill. BioSurplus’ sole liability for breach of this warranty shall be at its option to give credit for or re-perform the Services in question. This warranty shall only extend for a period of ninety (90) days after the completion of the Services and any claim shall be submitted in writing within such period.
7.4 [Software – BioSurplus warrants, for a period of ninety (90) days after the date of installation that the Software substantially conforms to its published specifications and that the media on which the Software resides will be free from defects in materials and workmanship under normal use and any claim shall be submitted in writing within such period. BioSurplus does not warrant that the Software is error free or that Buyer will be able to operate the Software without problems or interruptions. BioSurplus´ sole liability and Buyer’s exclusive remedy in the event of breach of this warranty is limited to repair, replacement or refund, at the sole option of BioSurplus.]
7.5 To the maximum extent permitted by applicable law, BioSurplus hereby expressly disclaims, and Buyer hereby expressly waives, any warranty regarding results obtained through the use of the Equipment or Services, including, without limitation, any claim of inaccurate, invalid, or incomplete results. All other warranties, representations, terms and conditions (statutory, express, implied or otherwise) as to quality, condition, description, merchantability, fitness for purpose or non-infringement (except for the implied warranty of title) are hereby expressly excluded.
8. Relocation of Equipment BioSurplus shall not be under any obligation to provide service under this Contract for Equipment which was removed from the originally identified location without BioSurplus’ prior written consent. The cost associated with relocation and re-installation of the Buyer’s Equipment is not covered under this Contract. BioSurplus Service Engineers are available to supervise the moving of the Equipment at BioSurplus’ standard service charges applicable at the time of the move. Service of Equipment at a new location is subject to availability.
9. Limitation of Liability
9.1 BioSurplus shall have no liability under the warranties contained in Section 7 with respect to any defect in the Parts or Equipment on which the Services are provided arising from: (i) specifications or materials supplied by the Buyer; (ii) fair wear and tear; (iii) willful damage or negligence of the Buyer or its employees or agents; (iv) abnormal working conditions at the Buyer’s premises; (v) failure to follow BioSurplus’ instructions (whether oral or in writing); (vi) misuse, relocation, alteration, installation or repair of the Parts or Equipment without BioSurplus’ approval; or (vii) if the Buyer is in breach of its payment obligations under this Contract.
9.2 Buyer shall be responsible for maintaining a procedure external to the Equipment to reconstruct lost or altered data, files or programs.
9.3 Neither party shall be liable for any indirect, consequential or punitive damages of any kind from any cause arising out of the sale, installation, use or inability to use any Equipment including without limitation, data loss, loss of profits, goodwill or business interruption.
9.4 The total liability of BioSurplus arising under or in connection with the Contract, including for any breach of contractual obligations and/or any misrepresentation, misstatement or tortious act or omission (including without limitation, negligence and liability for infringement of any third party intellectual property rights) shall be limited to damages in an amount equal to the amount paid to BioSurplus under the Contract.
9.5 The exclusion of liability in these Terms shall apply only to the extent not prohibited by applicable law.
10. Intellectual Property Rights
10.1 The Buyer shall provide, and where applicable procure, adequate approvals or licenses for BioSurplus to use Buyers’ and/or third party’s service software, documentation and any other proprietary information as reasonably necessary to allow BioSurplus to perform the Services. Buyer agrees to compensate BioSurplus and hold BioSurplus harmless from any liability in this respect.
10.2 All intellectual property rights in the Parts and/or Services shall at all times remain vested in BioSurplus and/or its licensors. Any user license as may be granted to the Buyer under the Contract shall be non-transferable and non-exclusive and shall only be used for the Buyer’s own internal business purposes of operating the Equipment. Any such license shall terminate automatically on the termination or expiry of the Contract for whatever reason.
10.3 BioSurplus shall have a right to use performance data related to the Equipment which has been collected by BioSurplus during the provision of the Services under this Contract for internal use, including, but not limited to, benchmarking and quality initiatives. Any data collected by BioSurplus will be used in accordance with all applicable federal, state and local laws and regulations and in a manner that will maintain confidentiality.
11. Health and Safety
11.1 The Buyer shall ensure: (i) proper safety conditions for BioSurplus’ personnel during the provision of the Services; (ii) that the Equipment shall be totally clean and exempt from potentially infected materials and from all biological fluids prior to the provision of any Service; and (iii) that BioSurplus is properly notified of any safety or bio-hazards and any relevant regulations.
11.2 BioSurplus’ personnel may suspend maintenance or repair operations and disconnect the Equipment if they consider that there is a risk to their safety and health. Buyer shall ensure sufficient lighting (and generally all necessary sources of energy/power) and a telephone/fax line.
12. Insolvency In the event that the Buyer becomes insolvent or applies for bankruptcy or, being a company, goes into liquidation (other than for the purposes of reconstruction or amalgamation), BioSurplus shall be entitled immediately to terminate the Contract without notice and without prejudice to any other rights of BioSurplus hereunder.
13. Force Majeure BioSurplus shall not be liable with respect to the non-performance of any of its obligations herein to the extent such performance is prevented by any circumstances beyond its reasonable control including, but not limited to, strikes, lock outs or labor disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, acts or threats of terrorism, plant breakdown, computer or other equipment failure and inability to obtain equipment.
14. Export control The Buyer undertakes not to re-export the Parts or Equipment without the requisite export license from the relevant body of the United Nations or other similar international organization, the United States Government, the country of origin or the original country of export. The requirement to obtain a license may vary depending on the country of destination, the end user, the end use and other factors. Upon request from BioSurplus the Buyer shall furnish BioSurplus with copies of all documents relating to such re-export.
15.1 Either party may terminate this Contract at any time upon written notice should the other party fail to observe one or more of its obligations hereunder, provided that the Contract shall not be terminated if the party in default has cured the default within sixty (60) days after receipt of the notice.
15.2 In the event of termination, the Buyer shall promptly pay BioSurplus any monies due for the services actually performed and expenses actually and reasonably incurred in servicing the covered Equipment from its effective date until the date of termination. Any payments made by Buyer to BioSurplus in excess of this amount shall be credited to the Buyer’s account within thirty (30) days after the date of termination toward future purchases of BioSurplus instruments, consumables or service agreements. Any unpaid portion of this amount shall be immediately due upon Buyer’s receipt of an invoice from BioSurplus.
16. Assignment This Contract may be assigned by the Buyer only upon the prior written consent of BioSurplus. Any attempted assignment or transfer of this Contract without such prior written consent will be void. BioSurplus may assign or transfer any of its rights or obligations under these Terms and applicable Service Exhibits upon notice in connection with a merger, reorganization, transfer, sale of assets or product line, spin-off transaction or change of control or ownership of BioSurplus, or its permitted successive assignees or transferees.
17. Governing Law This Contract shall be governed by and construed in accordance with the substantive laws of the State of California and the parties hereby submit to the non-exclusive jurisdiction of the courts of the State of California. To the extent that any provision or a portion of any provision of these Terms is determined to be illegal or unenforceable, the remainder of these Terms will remain in full force and effect.
18. Product-Specific Terms and Conditions Additional terms and conditions govern the sale of certain products, including, but not limited to, Software. These additional terms and conditions are available from the sales offices of BioSurplus and shall take precedence in the event of any inconsistency with these Terms.
19. Entire Agreement These Terms and any Service Exhibits attached hereto constitute the entire agreement between BioSurplus and Buyer, and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Buyer’s additional or different terms and conditions will not apply.