1. bioMerieux Singapore Pte Ltd (“bioMérieux”) prices are for Products only and do not include technical data, proprietary rights of any kind, patent rights other than use, or other than standard commercial packaging. Prices are exclusive of transportation, insurance, taxes (including without limitation, any use tax, sales tax or similar tax), license fees, customs fees, duties and other charges (“Other Charges”) related thereto, and Customer (“Customer”) shall report and pay any and all Other Charges, and hold bioMérieux harmless therefrom. Orders accepted by bioMérieux may be canceled by Customer only upon bioMérieux’ written consent. Stenographic and other clerical errors are subject to correction by bioMérieux.
2. All payments for the Products are due and payable in full thirty (30) days from date of invoice or such credit term as granted by bioMerieux. Past due balances are subject to a service charge at the rate of 1.5% per month, but in no event shall such charge exceed the rate permitted by applicable law. In addition to all other remedies available at law or in equity, failure to pay within sixty (60) days shall give rise to a right of bioMérieux to (a) declare all amounts payable under this Agreement immediately due and payable; (b) require Customer to assemble the Products and make them available to bioMérieux at a reasonably convenient location; and (c) sell or otherwise dispose of the Products. Any claims for adjustment of prior invoices must be submitted in writing to bioMérieux within one (1) year of the date of invoice, stating the reason for the claim, the invoice number and the date of invoice. Customer hereby represents that it is solvent, generally paying its debts as they become due, and is not contemplating voluntary liquidation or reorganization and has not received notice of involuntary liquidation. bioMérieux may cancel or delay delivery of Products if Customer fails to make timely payment of its account with bioMérieux, and may terminate this Agreement immediately upon written notice.
3. All domestic delivery in Singapore are D.A.P from. bioMérieux’ warehouse and risk of loss or damage shall pass to Customer at such point and time. bioMérieux reserves the right to charge Customer for freight at a rate not to exceed the quoted commercial rate of the carrier. bioMérieux reserves the right to ship Products freight collect and bioMérieux shall select the means of transportation and routing. At its option, bioMérieux may insure full value of the Products or declare full value thereof to the carrier at the time of delivery, and such insurance costs shall be the responsibility of Customer. Customer must inspect the Products upon receipt and file the claims with the carrier when there is evidence of damage, either concealed or external. Risk of loss shall remain with Customer until the Product is returned at Customer’s expense to such place as bioMérieux may designate in writing.
4. bioMérieux shall not be liable in any way for delay in delivery or other failure of performance because of unforeseen circumstances or causes beyond its control, including, without limitation, strike, war, fire, riot, accident, acts of God, hurricane, earthquake, severe weather, interruption of electrical supply to Customer’s facilities, failure or breakdown of components necessary to completion, supplier-caused delays, inability to obtain labor, material or manufacturing facilities, or compliance with any law, regulation, embargo restrictions or order of any government body or instrumentality thereof. Performance shall be deemed suspended during said circumstances and extended for such time as said circumstances cause delay.
5. Installation of the Instrument shall be deemed accepted by Customer upon completion by bioMérieux of its applicable acceptance tests, determined and performed at bioMérieux’s sole discretion, but use of any Product by Customer for any purpose after delivery shall constitute acceptance.
6. Without prior written consent of bioMérieux, Customer shall not assign this agreement or sublease, pledge or transfer the Instrument or Products, or any part thereof or interest therein; any attempted assignment, sublease, pledge or transfer in contravention of this prohibition shall be null and void. In no event shall Customer re-locate the Instrument without the prior written consent of bioMérieux.
7. In the event the Instrument is to be returned to bioMérieux, Customer shall return the Instrument to bioMérieux purged of any and all electronic protected health information (PHI) (see http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/disposalfaqs.pdf for more information) and in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof alone excepted, by delivering the Instrument at Customer’s cost and expense to such place as bioMérieux shall specify within the city or county in which the same was delivered to Customer.
8. Unless otherwise set forth in the purchase documentation, bioMérieux warrants the Instrument(s) to the original purchaser for a period of one (1) year after date of installation (the “Warranty Period”) against defects in material and workmanship and failures to conform to bioMérieux’ specifications applicable on the date of installation. bioMérieux agrees to correct, either by repair or, at its election, by replacement (with new or exchange replacement parts), any such defect found on examination to have occurred, under normal use and service, during the Warranty Period provided bioMérieux is promptly notified in writing upon discovery of such defect. The Instrument is warranted to be new, except if otherwise specified.
9. Disposables and replacement items with a normal life expectancy of less than one (1) year such as batteries, lamps, bulbs, and card trays are excluded from this warranty. bioMérieux shall not be liable under this warranty for any defect arising from abuse of the Instrument; failure to operate and maintain the Instrument in accordance with the Operators Manual; improper storage or handling; inadequate back-up or virus protection or any cause external to the Instruments or beyond bioMérieux’ reasonable control, including, but not limited to, power failure and failure to keep Customer’s site clean and free of dust, sand and other particles or debris; operation of the Instrument by a technologist who has not been trained in its operations at bioMérieux’ training school; or repair service, alteration, or modification of the Instrument by any person not properly trained and qualified as a service technician. bioMérieux shall not have any obligation to Customer if the warranty claim results from or arises out of: (i) the use of the Instrument in combination with any software tools, hardware, equipment, supplies, accessories or any other materials or services, not furnished by bioMérieux or recommended in writing by bioMérieux; the use of the Instrument in a manner or environment, or for any purpose, for which bioMérieux did not design or license it, or in violation of bioMérieux’ recommendations or instructions on use; or (iii) any alteration, modification or enhancement of the Instrument by Customer or any third party not authorized or approved in writing by bioMérieux. In addition, this warranty does not cover the Instrument to the extent it is used in any country other than the country to which the Instrument was originally shipped.
10. THE WARRANTIES OF BIOMÉRIEUX SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY INSTRUMENTS DELIVERED HEREUNDER (INCLUDING WITHOUT LIMITATION ANY OBLIGATION OF BIOMÉRIEUX WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT EACH OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED). This Warranty shall not be extended or altered except by written agreement signed by bioMérieux. Further, in no event shall bioMérieux be liable for incidental, consequential or punitive damages of any kind, including, but not limited to, lost profits or revenue. In addition, IN NO EVENT SHALL BIOMÉRIEUX’ LIABLITY TO CUSTOMER UNDER ANY CLAIM EXCEED A REFUND OF THE AMOUNT PAID TO BIOMÉRIEUX FOR THE PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM.
11. All software, firmware and hardware relating to Products supplied to Customer by bioMérieux hereunder shall be treated by Customer as confidential and proprietary and shall not be disclosed to third parties. Customer shall not reproduce, copy or substantially duplicate any parts of said materials, including manuals, all of which are protected by copyright, without the written consent of bioMérieux. In the event any Product purchased hereunder is returned to bioMérieux for any reason, or transferred to a third party, Customer shall return all of said materials including copies thereof to bioMérieux. Customer understands that all software and copyrighted material delivered pursuant to this agreement is the property of bioMérieux or the manufacturer.
12. This agreement shall be governed by the substantive law of Singapore.
13. This document, and the addendums incorporated pursuant to the reverse page contains the entire and only agreement between the parties with respect to the subject matter hereof, and any representation, promise or condition herewith not specifically incorporated herein in writing shall not be binding on either party. Any statement or representation not contained herein have not been relied upon by Customer. Any assignment hereof of any rights herein by Customer shall be void without bioMérieux’ written consent. Without the prior written consent of bioMérieux, Customer may not purchase Products for shipment to other third-party users.
14. Notwithstanding any additional terms or conditions included on Customer’s order or subsequent correspondence, such additional terms and conditions shall not become part of bioMérieux’ contract with the Customer unless expressly agreed to by bioMérieux in writing. Notwithstanding any terms or conditions included on Customer’s order, bioMérieux’ performance hereunder is expressly made conditional on Customer’s agreement to bioMérieux’ terms and conditions and in no event shall bioMérieux be deemed or construed to accept Customer’s terms and conditions. If this instrument is not executed in writing, acceptance of any Product or service shall be deemed acceptance by Customer of all terms and conditions stated herein.
15. Title to the Instrument shall at all times remain with bioMérieux and Customer shall at all times protect and defend, at its own cost and expense, the title and interest of bioMérieux from and against all claims, liens and legal processes of creditors of Customer, and keep the Instrument, and Customer’s interest therein, free and clear from all such claims, liens and processes.
16. No delay or omission by bioMérieux to exercise any right or remedy under this Agreement shall be construed to be either acquiescence or the waiver of the ability to exercise any right or remedy in the future. Any waiver by bioMérieux of any provision or condition of this Agreement shall be in writing and shall not be construed or deemed to be a waiver of any other provision or condition of this Agreement nor waiver of a subsequent breach of the same provision of condition, unless such waiver be so expressed in writing and signed by bioMérieux.