Terms of Sale

BD Biosciences Product Terms and Conditions

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2. Order Acceptance: The following outlines the terms and conditions upon which BD Biosciences accepts orders for goods and services and constitutes the entire 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 or other document sent to BD Biosciences by the BUYER. By issuing a purchase order, the BUYER is deemed to have accepted these terms.
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4. Pricing: List prices can be obtained by visiting the BD Biosciences website www.bdbiosciences.com or contacting Customer Service toll-free at (855) 236-2772. BD Biosciences reserves the right to change pricing without notice.
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6. 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.
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8. Shipping: Typically, orders are shipped Monday through Thursday for next-day delivery in the US Orders received on Friday are shipped Monday for next-day delivery. Saturday delivery may be requested at an 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.
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10. 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 packs. 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.
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12. Shortages or Damaged Goods: BD Biosciences must be notified of any claims for shortages or damaged products within 72 hours of receipt of the products or they shall be deemed accepted by you. For damaged products, at BD Biosciences option, an authorization to return the goods may be issued or you may be asked to document the destruction of the goods at your site.
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14. Reagent Returns: BD Biosciences Customer Service must be notified within 14 days after receipt of the product of any request to return a reagent product. A return authorization is required for all returns. Not all requests for return will be granted: for example, in the case of a Buyer's purchasing error or change in the order subsequent to shipping the product, authorization will not be granted. Special order and custom products, or products which cannot be resold will not be authorized for return absent a defect. BD may choose to verify any performance problems prior to authorizing return or replacement. All return shipping costs are to be paid by the Buyer. Please contact the Customer Service department toll free within the U.S. at (855) 236-2772 to request authorization to return, information, or clarification of our policies.
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16. Restocking Fee: All requests to return products that do not have a verified performance problem will be subject to a restocking fee of 25% of the purchase price or minimum of $25, whichever is greater. If BD Biosciences makes a shipping error, the product can be returned at BD Biosciences expense and no restocking fee will apply.
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18. 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 the 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 the 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 (201) 847-5334.
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20. 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 Reagents (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.
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22. 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, may be available for an additional fee.

    Custom reagent orders are typically produced within six to eight weeks.

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24. 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.
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26. 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.
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28. Proprietary Software BD FACSLink™ Software License and Warranties: In consideration of the purchase price you pay for any instrument, BD's proprietary 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. BD FACSLink software is licensed to you pursuant to a license agreement that is agreed at the time of installation and that BD has the right to enforce. BD proprietary and BD FACSLink software contain 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. All 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 Service Maintenance Agreement duration of the original instrument. If this purchase occurs during the last three months of the system warranty or Service Maintenance 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.

    Service for BD FACSLink software may be provided by Data Innovations, Inc. BD FACSLink uses Data Innovations' Instrument Manager™ software.

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30. Third Party Software Warranty: Third party software, not developed by BD Biosciences, will carry the warranty, if any, of the third party software vendor (e.g. Microsoft®, Verity Software House), not of BD Biosciences.
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32. 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: (1) for instruments that come with BD provided installation upon installation or thirty days after the date of shipment, whichever occurs first, or (2) for instruments that are sold to be installed by the customer seven weekdays after the date of shipment. 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. For instruments that come with BD provided installation, 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. Any 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.

17. 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 Service Maintenance Agreements, though upgrades are not automatically included. Options purchased after the initial instrument purchase will assume the remaining warranty or Service Maintenance Agreement of the original instrument, unless the purchase occurs during the last three months of the system warranty or Service Maintenance 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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 Term of Service Maintenance Agreement

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

I. General

A. 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.

B. 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.

C. 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.

D. Service Maintenance Agreements may not be terminated by BUYER prior to the end of the term.

E. BD Biosciences products include BD Assurity Linc™, our secure remote support solution. Service and maintenance will be conducted remotely to diagnose or resolve issues before Field Service Representatives are dispatched to the site for repairs.

II. BD Biosciences Responsibilities

A. 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 perform remote service or send a Field Service Representative (a "Representative") to perform (a) the number of preventive maintenance inspections indicated above and (b) unlimited remote support and onsite visits as reasonably requested by BUYER to perform repairs. The Representative must be permitted access through BD Assurity Linc, the BD Biosciences’ secure portal, and 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.

B. Preventive Maintenance Inspections: During each preventive maintenance visit, the Representative will evaluate the INSTRUMENT(s) performance and provide a preventative maintenance kit (if applicable) for use by the 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.

C. Technical Support: BUYER may obtain support by calling the 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 8 AM and 12 AM Eastern Time, and may leave a message at other times. If efforts to correct problems remotely with BD Assurity Linc or 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 Service Maintenance 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 Service Maintenance 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.

D. 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 BD  Biosciences is not obligated hereby to provide parts for spares or inventory or service on any such parts.

E.  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.

F. Software and Firmware: BD warrants for the agreement term that the software and firmware sold to BUYER will conform to BD’s operation manuals current at the time of shipment to BUYER when properly installed. BD does not warrant that the software and firmware will operate uninterrupted or error-free. BUYER’s sole remedy for breach of this warranty is replacement by BD of the non-conforming software or firmware with conforming or updated software or firmware.

G. Shipping & Handling: Shipping & Handling charges for replacement parts that are covered under Warranty or Service Maintenance 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.

III. Buyer Responsibilities

A. 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.

B. 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.

C. 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.

D. 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 Biosciences 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.

E. 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. All required safety training, personal protective equipment, instrument test equipment and necessary tools required for instrument service located in a BSL 3 laboratory, must be supplied by the BUYER. BD  Biosciences reserves the right to discontinue any and all BSL 3 laboratory instrument service until appropriate personal protective equipment and tools are furnished by the BUYER. Calibration of the tools and test equipment are the sole responsibility of the BUYER. No parts may be returned to BD  Biosciences and must be disposed of by the BUYER. BD  Biosciences field service personnel are not required to take BD tools and calibration equipment into the BSL 3 laboratory space. If tools are not available, BD  Biosciences is not obligated to provide on-site repair service. In the event the BUYER is unable to make the instrument available for scheduled preventative maintenance in a 60-day period from the initial planned service date, BUYER waives the right to have that scheduled service visit performed during the contract year or thereafter. No compensation will be provided by BD  Biosciences for any missed preventative maintenance services.

F. 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 Biosciences'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 III. 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) in a BSL 3 laboratory. BUYER's indemnification obligations hereunder shall include the payment of reasonable attorney's fees.

G. Upon purchase of a Service Maintenance Agreement, BUYER is obligated for the duration of the agreement specified and is responsible for payment in full. Service Maintenance Agreements are not cancelable.

IV. Exclusions

A. Service does not include consumable items (except preventive maintenance kits as applicable).

B. Consumable items are listed in the BD  Biosciences product catalog under the 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 the BD  Biosciences then current list price.

C. Neither the warranty nor the Service Maintenance 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.

D. Any damage caused during transportation for the service of a depot repaired product is not covered under this Agreement.

E. Defacement of the Product serial number will void this Agreement.

F. Any incorporation of the Product under this Agreement into a system without BD’s approval will void this Agreement.

G. 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 the Service Maintenance Agreement.

H. The warranty and the Service Maintenance Agreement do not provide for Service on the computer workstation printer.

I. Service may be discontinued on any Third Party software or hardware that is not currently marketed by BD.

J. The warranty and the Service Maintenance Agreement do not provide for Service relating to a failure to comply with Section III or any other damage to the INSTRUMENT(s) resulting from BUYER's negligence.

V. Service Parts Warranty

All parts supplied by BD  Biosciences during the warranty period or Service Maintenance 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.

VI. Miscellaneous

A. 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.

B. 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.

BD PAS PRODUCT TERMS AND CONDITIONS

Applies ONLY to BD PAS Blood Collection products purchased on www.bdbiosciences.com

A. Order Acceptance: The following outlines the terms and conditions upon which BD Life Sciences (Preanalytical Systems (“BD PAS”) accepts orders for goods and services and constitutes the entire agreement between the parties. By issuing a purchase order, BUYER is deemed to have accepted these terms.

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

C. Payment Terms: Preanalytical Systems payment terms are Net 30 days.

D. Standard Orders: No minimum order quantity is required, unless specifically noted in the catalog. Orders cannot be revised or cancelled once an order has been sent to BD’s distribution center for processing. Additions to orders once an order is created must be entered on a separate order and may therefore be subject to additional shipping charges. BD PAS reserves the right to alter orders where quantities are significantly higher than historical norms, or in times of scarce supply. BD will notify customer of any change to order quantity prior to shipment.

E. Shipping: Orders will be shipped same day or next-day. If received after 1:30 PM EST Orders are shipped Monday through Friday (Holidays excluded) for next working day delivery in the U.S. All shipments are freight on board (FOB) shipping point. BD PAS 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.

F. Packaging: In an effort to be environmentally friendly, BD PAS 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 products 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.

G. Reporting of discrepancies: Customer should accept deliveries made by carrier by counting and inspecting prior to acceptance of delivery from the carrier. Discrepancies should be noted on the freight document and countersigned by driver. Discrepancies not noted on packing slip or documents signed subject to count or with a pallet count may not be credited. Any discrepancies (pricing, billing charges, shortages, overages, wrong Product, missing documents, damages, etc.) must be reported within 15 calendar days of invoice date via email, phone and/or reconciled debit memo notification. Failure to provide timely notification within 15 days of invoice date may be grounds for denial of the claim, and unsubstantiated invoice deductions will not be allowed.

7.2 When reporting claims, have available the following: 

• Purchase information (purchase order and invoice number)
• Type of discrepancy and requested action
• Product information (BD catalog number, lot and/or batch number, and serial #s if applicable)
• Quantity of material per the packing list unit of measure terms
• Contact information (contact name, email, telephone and fax number)
• Copy of carriers bill of lading or delivery receipt signed by customer receiving personnel which includes # of pallets received, any visible damage noted, and the seal # - if a full truckload shipment

I. Returns: — BD will accept product returns only to the extent that such products were purchased directly from BD, subject to the following terms and conditions:

8.1.1. Returns will not be accepted for full credit without an RMA (Return Material Authorization; previously called Return Goods Authorization) issued by BD, including returns which are the result of a BD error.

8.1.2. All product returns must have an RMA attached with return paperwork.

8.1.3. To obtain an RMA, email/fax/phone request to: E-mail: claims_resolution@bd.com Fax: 800-228-8303 Phone: 888-237-2762

8.1.4. In order for BD to issue an RMA include the following information:

• Purchase information (purchase order and invoice number)
• Reason for return including type of damage, if applicable
• Product Information (material number, lot number, UOM, pallet condition, expiration date & quantity)
• Contact Information (contact name, phone and fax number)
• Requested pricing must reference previous order pricing. Otherwise, BD will price returns at the published Distributor Price

8.1.5. An RMA will not be issued, nor will credit be given for the following:

• Product returned WITHOUT authorization
• Product not purchased from BD or through an Authorized Distributor
• Products that contain drugs
• Products that are temperature controlled
• Products returned with conditions that prevent resale. Examples include, but are not limited to:
  • Special Ordered or Custom Made Products
  • Obsolete or discontinued products
  • Opened products
  • Expired product or product outside minimum dating requirements
  • Units of measure less than BD’s original unit of issue

8.1.6. An RMA will only be issued to the original ship-to location and to the business entity that originally purchased BD product. If any other business entity (i.e. hospital) ships off of an RMA issued to the original purchaser, any subsequent denial of credit due to a violation of the terms and conditions noted above will be absorbed by the Distributor who requested the RMA. Product returns MUST be completed within 30 days of the issuance of the RMA to be eligible for full credit. If returned product is shipped after the 30 day expiration of the RMA and the product is received in saleable condition and within shelf life guidelines, BD reserves the right to refuse the return or charge additional restocking fees. Returns are to be shipped to the address indicated on the authorized RMA form. The Distributor pays the freight charges for all returns except as otherwise noted. Product received by the Distributor damaged or defective, as well as any product shipped in error by BD will be accepted for return freight collect by a BD preferred carrier. Restocking fee will not apply. All product returned with expiration dating must meet acceptable BD shelf-life guidelines and must be in its original, full shipment container. (Example for original, full shipment container: If product was originally bought as a case, then a case should be returned.) Contact BD to identify expiration or container requirements for a specific material number

8.1.7. BD will not issue credit for products returned in a condition that prevents resale. Examples include, but are not limited to the following:

• Product not in original shipment container
• Product with customer labels and/or tape on container
• Product with pen/marker marks on original packaging container
• Damaged product (including damaged product not communicated to BD prior to return)
• Product container contaminated with foreign matter (oil, grease, etc.)
• Temperature sensitive/controlled product
• Units of measure less than BD’s original unit of issue
• When returning small items, BD highly recommends utilizing over-pack boxes to reduce the probability of product damage. Also, the application of carrier labels to the original carton may invalidate your credit.

NOTE: If such non-resale product is returned credit will not be issued and the product will be destroyed.

Applicable Restocking Fees : Returns requested within 0-180 Days from original shipment date are subject to a 25% Restocking Fee. Returns requested 181 days and over from original shipment date will be denied. The Product is not returnable nor will credit be issued.

1. Product Use Limitations: BD PAS 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 for In Vitro Diagnostic Use (IVD). BD PAS is not liable for misuse of any product. All 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.

2. Information Provided to Third Party Suppliers: BD PAS may provide your information to suppliers included in its products, or to integrators or other subcontractors whom BD PAS 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.

3. Warranties: BD PAS represents and warrants that the Products shall be free from material defects in materials and workmanship. The foregoing warranty shall be void if the product has been misused, neglected, improperly handled, altered, abused or used for any purpose other than the one for which it was manufactured or if the product’s failure to conform to the foregoing warranty was due in whole or in part to other conditions beyond the control of BD. BD’s liability for failure of the product to conform with the foregoing warranty shall be limited to the replacement of such product. THE WARRANTY SET FORTH IN THIS PARAGRAPH ARE EXCLUSIVE REGARDING THE PRODUCTS AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED BY STATUTES OR OTHERWISE ARE HEREBY EXPRESSLY DISCLAIMED. YOU AGREE THAT BD IS NOT RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, OR BUSINESS DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFIT OR USE), WHICH MAY BE SUFFERED AS A RESULT OF YOUR SALE OR THE USE OF THE PRODUCTS.

4. Indemnification: You shall indemnify and hold harmless BD, its affiliates, directors, officers, employees and agents from and against any suits, claims, losses, demands, liabilities, damages, costs and expenses (including costs, reasonable attorney’s fees and reasonable investigative costs) in connection with any suit, demand or action by any third party to the extent such suit, demand, or action arises out of or results from its use or sale of the products purchased by you from BD, except to the extent that such suit, demand or action arises out of the failure of such products to meet the warranty set forth above.

5. Governing Law: This agreement and all disputes arising hereunder and/or related to the BD products purchased by buyer will be governed by and interpreted in accordance with the internal laws of the State of New Jersey. The parties also shall submit all such disputes to the exclusive jurisdiction of the courts of the State of New Jersey.

6. Modifications: BD PAS reserves the right to modify these Terms and Conditions without prior notice, including the addition of a surcharge to all invoices.

7. Export Law Compliance: U.S. law regulates the export, re-export or other transfer of the products that are sold by BD and purchased under the terms set forth herein. Any required U.S. and non-U.S government authorization must be obtained prior to shipment, and diversion contrary to U.S. and non-U.S. law is prohibited. By ordering these products from BD, the recipient agrees to comply fully with all applicable export control laws and regulations of the United States and applicable foreign governments, and expressly assumes responsibility for determining whether a subsequent transaction requires U.S. and non-U.S. government authorization and, if so, for obtaining such authorization before shipping or otherwise transferring the products to another party. Buyer shall not knowingly use, resell or distribute any BD product directly or indirectly for the development, production or proliferation of weapons of mass destruction (nuclear, chemical, or biological) or missile delivery systems, and/or for terrorist activities.

8.  BD Key Contact List: