1. General: Entire Agreement
The consulting services (the “Services”) to be provided by Molecular Devices (the "Provider") to the party purchasing the Services (the "Customer") shall be governed by these terms and conditions. Provider’s offer to sell the Services to Customer is expressly limited to Customer’s acceptance of these terms and conditions. Any of the following constitutes Customer’s unqualified acceptance of these terms and conditions:
- Issuance or assignment of a purchase order for the Services,
- Acceptance of any Service under the purchase order, or
- Payment for any of the Services under the purchase order.
Additional or different terms or conditions proposed by Customer (including any additional or different terms provided in a purchase order) shall be void and of no effect unless specifically accepted in writing by Provider. This Agreement shall be the exclusive agreement between the parties for the Services subject to the terms and conditions herein. Any prior or contemporaneous understandings, agreements, and representations, oral or written, are superseded by these terms and conditions. No modification to these terms and conditions shall be valid unless in writing and signed by Provider.
2. Statement of Work
The Services will be as described in Provider’s quotation which Customer has accepted by issuing a purchase order or in a statement of work signed by both parties (each such quotation or statement of work, an “SOW”). The SOW will specify the Services description and any deliverables to be provided. Provider will use commercially reasonable efforts to complete the Services within the mutually agreed upon timeframe. If, based on resources availability, Provider in its reasonable discretion determines that the deadline for completion needs to be adjusted, Provider will notify Customer as soon as possible and specify a new date of completion.
A. Customer shall have seven (7) days after completion of the Services to review and accept or, if the Services do not meet the description set forth in the SOW, reject the Services. If Customer does not notify Provider of its acceptance or rejection within such 7 day period, the Services and all associated deliverables shall be deemed accepted by Customer.
B. If Customer rejects the Services or a deliverable pursuant to Paragraph 3(A), the notice of rejection must itemize each instance in which the Services or associated deliverables fail to meet the applicable description ("Failure") in sufficient detail to permit Provider to replicate and diagnose the Failure. Failures caused solely by Provider, its affiliates, employees, agents or subcontractors and the diagnosis and correction of such Failures will be at no additional cost to Customer . Provider shall use commercially reasonable efforts to promptly diagnose and correct all identified Failures. Acceptance of the re-performed Services or modified deliverables shall be conducted in accordance with Paragraph 3(A).
4. Limitation of Liability
Except as expressly provided in Paragraph 3 above, Provider makes no warranty of any kind whatsoever, express or implied, as to the Services or any deliverable including as to fitness for a particular purpose or merchantability. IN NO EVENT WILL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICES EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDER’S TOTAL CUMULATIVE LIABILITY, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID DURING THE TWELVE MONTHS PERIOD PRECEDING THE CLAIM. ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT.
5. Price/Payment Terms
A. Services shall be sold and invoiced at the prices listed on the quotation. Prices do not include sales, excise, use or other taxes now in effect or hereafter levied by reason of this transaction. Customer will pay and indemnify and hold Provider harmless from all such taxes.
B. Payment terms are net thirty (30) days from date of invoice. Provider shall invoice Customer for the full amount upon completion of the Service and delivery to Customer of all deliverables set forth in the applicable SOW, unless otherwise indicated on the SOW. Provider reserves the right to require alternative payment terms, including, without limitation, site draft, letter of credit or payment in advance.
C. If payment is not received by the due date, a late charge will be added at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date thereof.
D. All payments will be made as follows.
All checks should be sent to:
2680 Collections Center Drive
Chicago, IL 60693
All payments by wire transfer should be submitted to:
Bank of America
San Francisco, CA
Under Swift B of A US65
For Credit of: Molecular Devices
Routing and Transit No.: 121000358
Final Account No.: 1493-6-04706
By Order of: "Sending Company Name"
E. If Customer is delinquent in paying any amount owed to Provider by more than ten (10) days, then without limiting any other rights and remedies available to Provider under the law, in equity, or under the Agreement, Provider may (i) suspend performance of Services, or (ii) by notice to Customer, treat such delinquency as a repudiation by Customer of the portion of the Agreement not then fully performed, whereupon Provider may cancel all further performance of Services and associated deliveries and any amounts unpaid hereunder shall immediately become due and payable. If Provider retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including attorney's fees and expenses, shall be payable by Customer.
If the Services require that Customer’s equipment or materials (“Materials”) be sent from Customer to Provider, Customer shall send such Materials to Provider at Customer’s cost. The risk of loss of Materials shall transfer to Provider upon receipt of Materials by Provider. Provider will use the Materials only for performance of the Services. Customer shall notify Provider in writing on or before shipment of any known health or other hazards associated with the possession or handling of the Materials furnished to Provider. Provider shall at its cost return the Materials to Customer within a reasonable time after completion of Services. The risk of loss shall transfer to Provider upon receipt of Materials.
7. Intellectual property
“Invention” means any inventions, discoveries, improvements, know-how, and new uses, whether patentable or not and all intellectual property rights therein, which are conceived and reduced to practice during the performance of the Services, which is or may be patentable or otherwise protectable under Title 35 of the United States Code. All Inventions invented solely by employees of one contracting party shall be the sole property of that party.
8. Independent Contractor
The parties are acting hereunder as independent contractors and not as partners, agents, fiduciaries, or joint venturers. Neither party has the power or authority represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party.
9. Force Majeure
Any delay in the performance of any duties (except for payment of fee owed) by either party will not be considered a breach if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or other event beyond the control of such party, provided that such party uses reasonable efforts to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
These contract terms will be governed by the laws of the State of California, without regard to conflicts of law principles which would require the application of the laws of any other state. All waivers must be in writing. A party’s failure to exercise any of its rights under this Agreement shall not constitute a waiver or forfeiture of any such rights nor of any other rights. If any provision of this Agreement is unenforceable or invalid pursuant to any applicable law, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such unenforceable or invalid provision will be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions. This represents the entire agreement between the parties as to the matters set forth herein and integrates all prior discussions and understanding between the parties. Any additional or inconsistent terms provided in any purchase order will not have any legally binding effect. Customer's rights hereunder may not be assigned to any third party by Customer except with the prior written approval of Provider.
Revision August 16, 2016