|
ONE MILLION DOLLARS ($1,000,000). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL
<br />SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION
<br />DAMAGES FOR (LOSS OF USE OF FACILITIES OR EQUIPMENT„ LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF
<br />GOODWILL)„ REGARDLESS OF WHETHER SELLER (a.) 14AS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) IS
<br />NEGLIGENT'
<br />1. _ ITT -TRI jONS. Buyer acknowledges that each Product and any related software .and technology, including technical information
<br />supplied by Seller or contained in documents (collectively "Items"), is subject to export controls of the U,S. govemment. The export controls may
<br />include, but are not limited to, those of the Export Administration Regulations of the 'U.S. Department of Commerce (the "EAR"), which may
<br />restrict or require licenses for the export of Items from the United States and their re-export from other countries. Buyer shall comply with the
<br />EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item Buyer
<br />shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (1) export or re-export any item, or
<br />(;li) export„ re-export" distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate
<br />in exports has been denied' or restricted by the U.S. government. Buyer shall if requested by Seller„ provide information on the end user and
<br />end use of any Item exported by the Buyer or to be exported by the Buyer, Buyer shall cooperate fully with Seller in any official or unofficial audit
<br />or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold Seller harmless from, or in
<br />connection with, any violation of this Section by Buyer or its employees, consultants„ or agents
<br />13 HAZARUQUaMAILRIALS. Some Products may require special packaging„ labeling, marking and handling, Carriers may add additional
<br />freight charges for the handling or transporting of these materials. The consolidating of such material with other Products may be prohibited.
<br />Additional freight charges will be billed per Seller's shipping terms, Be sure to advise Seller of shipping instructions for these hazardous
<br />materials to reduce your freight costs
<br />14. MISCELLANEM. (a) Buyer may not delegate any duties nor assign any rights or claims hereunder without. Seller's prior written consent,
<br />and any such attempted delegation or assignment shall be void. (b) The rights and obligations of the parties hereunder shall be governed by
<br />and construed in accordance with the laws of Indiana without reference to its choice of law provisions. Each
<br />arty hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in the county and state of
<br />ndi n6 in any action arising out of or relating to this Agreement (c) Both parties waive any right they may have under
<br />applicable law or otherwise to a right to a trial by jury. Any action arising under this Agreement must be brought within one (1) year from the state
<br />that the cause of action arose. (d) The application to this Agreement of the U.N. Convention on Contracts for the intemational Sale of Goods is
<br />hereby expressly excluded (e) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction
<br />to be invalid, illegal or unenforceable in any respect„ the validity, legality and enforceability of the remaining provisions contained herein shall
<br />remain in full force, and effect„ unless the revision materially changes the bargain. (f) Seller's failure to enforce„ or Seller's waiver of a breach of,
<br />any provision contained herein shall not constitute a waiver of any other breach or of such provision. (9) Unless otherwise expressly stated on
<br />the Product or in the documentation accompanying the Product, the Product is intended for non -clinical, non -diagnostic„ non -therapeutic use
<br />only and is notto be used for any other purpose, including without limitation, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or
<br />in vivo therapeutic uses, or any type of consumption by or application to humans or animals. (h) Buyer agrees that all pricing, discounts and
<br />technical information that Seller provides to Buyer are the confidential and proprietary 'information of Seller. Buyer agrees to (1) keep such
<br />information confidential and not disclose such information to any third party, and O use such infonration solely for Buyer's internal purposes
<br />and in connection with the Products supplied hereunder. Nothing herein shall restrict the use of information available to the general public. (i)
<br />Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personalty delivered or
<br />three (3) business days after being sent by certified mail„ postage prepaid, to a party at the address specified herein or at such other address as
<br />either party may from time to time designate to the other 0) Seller hereby rejects and disclaims any rights of Buyer contained„ or obligations
<br />imposed upon Seller, in any document provided, referencedor otherwise submitted by Buyer, in each case, that Seller has not expressly
<br />included in these [terms and conditions) or a writing manually executed by Seller (including, without limitation, any rights of Buyer in respect of
<br />designs„ specifications, source code or intellectual property, owned„ created„ developed or licensed, by Seller; any rights to items or services not
<br />specifically identified in Seller's quotation„ any audit rights or financial offset rights of Buyer; any penalties or liquidated damages imposed upon
<br />Seller„ any obligation by Seller to comply with Health Insurance Portability and Accountability .Act. of 1996 (as amended), Current Good
<br />Manufacturing Practice regulations (as amended)„ the requirements, as amended„ of the Customs -Trade Partnership Against Terrorism or any
<br />code of conduct, quality program„ information security program, background or drug screening program or other guidelines, programs or
<br />policies, in each case" promulgated or required by Buyer; any obligation that Seller comply with any, law that, tinder taw, would not otherwise
<br />apply to Seller in respect of the transaction(s) contemplated hereby; any right of Buyer to withhold all, or any portion, of the purchase price of
<br />any products or services provided hereunder for any period of time„ any right of Buyer, Itself or through any third party, to remediate any defects
<br />in, replace or re -perform, any products or services provided hereunder at Seller's cost or expense; any obligation of Seller to waive, or require
<br />its insurers to waive„ any rights of subrogation; any obligation of Seller that would' impair, restrict or prohibit Seller's ability to freely conduct any
<br />business with any person or in any geography or market„ any early -payment, or other, discount; any obligation of Seller to maintain a supply of
<br />spares„ or otherwise make any services available, for any particular period of time; any representation„ warranty or other obligation of Seller to
<br />provide pricing comparable to, or more favorable than, the pricing that Seller provides to others; any restriction of, or prohibition oil, Seller's
<br />ability to modify, change or discontinue any of its products, processes or services; or any waiver by Seller of any right to enforce any of the
<br />terms hereof),
<br />15. AND DE CRIBED IN THE RELEVANT QU IF YOU ARE PURCHASING ANY PRODUCTS PROVIDED BY SELLER HEREUNDER
<br />OTATION OR PURCHASE ORDER AS A SUBSCRIPTION TO ANY THERMO FISHER
<br />SOFTWARE -AS -A -SERVICE OFFERING (ANY SUCH PRODUCT, HEREINAFTER, A "SUBSCRIPTION"),THEN IN RESPECT OF SUCH
<br />SUBSCRIPTION(S) ONLY
<br />(a) The following terms and conditions of this Agreement shall not apply: Sections 6-7, 9.1, and 13.
<br />(b) The following terms and conditions of this Agreement shall be modified as set forth below:
<br />(i) Section 6 shall be replaced In its entirety with the following:
<br />a. Seller reserves Ilia right to suspend or terminate the Buyers Subscription(s)„ in
<br />whole or in part, if Buyer fails to make any payrrient to Seller when due, otherwise fails to perform its obligations hereunder, or fails to
<br />comply witf� Ilia Seller's Terms of Use agreement agreed to by Buyer and governing Buyer's use of the Subscription(s), as in effect
<br />from time to time (the °'Terms of Use""). Seller will not tie liable f'or any toss or damage resulting from any delay in activation of the
<br />Subscriptions) or failure to activate the Subsoription(s) which is due to any cause beyond Seller's reasonable control', In the event of a
<br />delay dui to any Dense beyond Seller's reasonable control, Seller reserves the right to terminate the order or to reschedule the
<br />activation of the Subsciiptron(s) within a reasonable period of time, and Buyer will not be entitled to refuse payment or otherwise be
<br />relieved of any obligations as the resent of such delay. Orders in process may be canceled only with Seller's written consent and upon
<br />
|