Applicability. As used herein, “PerkinElmer” shall mean the entity listed on the document to which these terms are attached and/or referenced. These terms and conditions of sale (these "Terms") are the only terms which govern the sale of hardware and consumable products ("Products") and related training and installation services ("Services") by PerkinElmer to the customer purchasing the Products and Services ("Customer"). These Terms and the accompanying quotation, sales confirmation, bill of lading, and/or invoice document (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any Customer general terms and conditions of purchase, whether such terms are additional to or different from these Terms, and regardless of whether or when Customer submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms, and Customer’s terms and conditions are expressly rejected. Customer’s acceptance of any quotation is expressly subject to Customer’s assent to these Terms, and Customer's assent to these Terms shall be conclusively presumed from Customer’s submission of its purchase order to PerkinElmer.
Delivery of Products; Performance of Services.
2.1 Customer’s purchase order shall be binding only upon PerkinElmer’s written acceptance or its fulfillment of such purchase order, whichever occurs first.
2.2 PerkinElmer shall use reasonable efforts to meet any dates specified for the delivery of Products and/or performance of Services; however, all such dates are estimates only and subject to PerkinElmer’s availability. If PerkinElmer’s supply of Products and Services covered hereby is limited, PerkinElmer shall have the right to allocate the available supply among its customers in any manner it determines appropriate in its sole discretion.
2.3 PerkinElmer’s delivery obligation for Products is solely to deliver to a loading dock or other external loading point at the address specified on the quotation (the "Delivery Point") using PerkinElmer’s standard practices for packaging and shipping. Unless otherwise indicated on PerkinElmer’s quotation, all Products are shipped FCA (Incoterms 2010) Shipping Point and Customer is responsible for all transportation, shipping and handling charges, which shall be prepaid and added to the invoice. Where Customer furnishes special transportation instructions, any special expense is to be borne by Customer, including any special handling, packaging and additional freight charges. Title to and risk of loss of Products passes to Customer upon shipment.
2.4 PerkinElmer may, in its sole discretion, without liability or penalty, make partial shipments of Products to Customer, regardless of utility to Customer in the absence of such undelivered portion. Each shipment will constitute a separate sale, and Customer shall pay for Products shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase order. Completion of any installation Services shall not be a condition precedent to Customer’s obligation to make payments hereunder.
Inspection, Acceptance and Return of Products.
3.1 Customer shall inspect Products immediately upon receipt and shall, within five (5) business days of receipt (the “Inspection Period”), give written notice to PerkinElmer of any claim that Products shipped constitute Nonconforming Products. "Nonconforming Products" means only the following: (i) Product shipped is different than specified on the Customer’s purchase order; or (ii) Product is visibly damaged. Customer will be deemed to have accepted Products unless it notifies PerkinElmer in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence as required by PerkinElmer. If Customer receives Products where defects or nonconformities are not apparent upon initial examination, or whose defects or nonconformities are not discovered until after the Inspection Period has passed, such Products shall be subject to the warranty provided by PerkinElmer in Section 9 below.
3.2 If Customer notifies PerkinElmer of any Nonconforming Products in writing within the Inspection Period, PerkinElmer shall, in its sole discretion, (i) replace such Nonconforming Products, or (ii) credit or refund the payments made for such Nonconforming Products. PerkinElmer will provide to Customer a return authorization number that must be included with the return packaging for a return to be accepted. Customer shall ship, at PerkinElmer’s expense, Nonconforming Products to the facility designated by PerkinElmer. If PerkinElmer exercises its option to replace Nonconforming Products, PerkinElmer shall, after receiving Customer’s shipment of Nonconforming Products, ship to Customer the replaced Products to the Delivery Point. Customer acknowledges and agrees that the remedies set forth in this Section are Customer’s exclusive remedies for the delivery of Nonconforming Products. Customer will be liable for restocking charges in the event Products are returned to PerkinElmer which are not Nonconforming Products.
3.3 Except as provided in this Agreement, Customer has no right to return Products to PerkinElmer.
Installation and Site Preparation; Services.
4.1 Installation Services are billed as a separate line item, unless otherwise expressly stated as included in the purchase price of Products sold hereunder. If Customer fails to properly prepare the site for installation prior to PerkinElmer’s service personnel arriving at Customer’s site on the mutually agreed installation date, PerkinElmer may impose a service charge to cover the lost time of PerkinElmer’s service personnel. If PerkinElmer is unable to perform installation Services within three (3) months of a Product’s shipment date as a result of Customer’s failure to prepare the site as required, Customer will be responsible for any costs associated with such delay, including without limitation, any required hardware, software and firmware updates.
4.2 Customer shall (i) provide access to Customer’s premises and facilities as may reasonably be requested by PerkinElmer for purposes of performing Services; (ii) provide materials, resources or information to carry out Services, including without limitation, power, water, drainage, air, bottled gases, items to uncrate and transport Products, or other reasonably requested resources; and (iii) have all necessary licenses, permits and consents prior to date of Product delivery.
4.3 PerkinElmer’s sales and service personnel are not authorized to enter into any indemnity, access, confidentiality or other agreements on behalf of PerkinElmer.
Prices. Customer shall purchase Products and Services from PerkinElmer at the price(s) set forth in PerkinElmer's quotation, or if no price has been quoted, then at the published list price in effect as of the date of acceptance by PerkinElmer of Customer's purchase order. Prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements (including without limitation, shipping outside of the country of original delivery), Customer’s delays in delivery, or other terms that were not part of the original quotation. If Customer requests shipment to a country other than the country originally requested, and if PerkinElmer elects not to cancel the order (which PerkinElmer may do in its sole discretion), PerkinElmer’s applicable surcharge for the actual country of delivery shall be added to the price.
Taxes. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, however, that Customer shall not be responsible for any taxes imposed on, or with respect to, PerkinElmer's income. If Customer claims that a transaction is not subject to any tax, Customer is exempt, or PerkinElmer is not required to collect any tax, Customer shall provide PerkinElmer with any documentation necessary to support such a claim.
Payment Terms. Unless otherwise set forth in the quotation, Customer shall pay all invoiced amounts due to PerkinElmer within thirty (30) days from the date of PerkinElmer's invoice. PerkinElmer reserves the right to require Customer to make full or partial payment in advance or otherwise provide security to PerkinElmer’s satisfaction. PerkinElmer may impose interest on late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly from the date of delinquency. Customer shall reimburse PerkinElmer for all costs incurred in collecting any late payments that have not been disputed in good faith within the thirty (30) day payment period, including without limitation, costs of reasonable attorneys' fees. In addition to all other remedies available under these Terms or at law, if (a) Customer fails to pay any amounts when due hereunder; or (b) Customer becomes insolvent or any proceedings are commenced under any bankruptcy or similar laws for Customer’s reorganization or other debt adjustment, then PerkinElmer shall be entitled to suspend the delivery of any Products or performance of any Services and/or reject any of Customer’s future orders. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with PerkinElmer.
Software. "Software" means the object code form of PerkinElmer's software and documentation related thereto, including without limitation any control or instrument software included with the Product. PerkinElmer provides all Software by license only and subject to Customer's assent to the end user license agreement provided with the Software. Customer understands and agrees that the Software is not being provided as a “work for hire” under any applicable local, state, federal, international or other laws and this is not an agreement for the sale of the Software. By downloading, installing, using, unwrapping, or issuing a purchase order for the license of the Software, Customer agrees that the Software is accepted as delivered and agrees to the terms of the applicable end user license agreement.
Limited Warranty. The warranties set forth in this Section 9 are the sole and exclusive warranties provided by PerkinElmer in connection with Products and/or Services provided hereunder and shall only apply to Customer as the original purchaser. The “Warranty Period” shall be the period of time that the warranty is valid as specified for each of the warranties listed below.
9.1 Instruments. PerkinElmer warrants that its instrument Products will substantially conform to PerkinElmer's published specifications in effect as of the date of shipment and will be free from defects in materials and workmanship, when subjected to normal, proper and intended usage, except that no warranty is provided for any used, refurbished or previously owned Products. Unless a different period is specified in the applicable quotation, the Warranty Period shall be (i) one (1) year from the date of delivery to Customer, or (ii) if the Product requires installation by PerkinElmer certified service engineers, the earlier of (x) one (1) year from the date of installation or (y) fifteen (15) months from the date PerkinElmer ships the Product to Customer. This warranty applies only to Products within the country of original delivery. Products transferred outside the country of original delivery, either by PerkinElmer at the direction of Customer or by Customer's actions subsequent to delivery, may be subject to additional charges prior to warranty repair or replacement of such Products based on the actual location of such Products and PerkinElmer's warranty and/or service surcharges for such location(s).
9.1.1 Spare Parts. Parts replaced during a warranty repair may be retained by PerkinElmer and shall become the sole and exclusive property of PerkinElmer upon repair or replacement. PerkinElmer warrants replacement parts for the longer of (i) the remaining term of the original Warranty Period of the Product in which the part is installed or (ii) thirty (30) days from the date of replacement. This warranty applies only to parts installed by PerkinElmer or a third party authorized by PerkinElmer.
9.2 Reagents, Consumables, & Other Goods. For Products that are consumables, reagents or other goods, PerkinElmer warrants that, at the time of shipment, all such Products shall conform to PerkinElmer’s published specifications. Unless otherwise set forth in the Product documentation, quotation or price list, the Warranty Period shall be for the longer of: (a) thirty (30) days from the date of delivery of such Products; (b) the expiration or “use by” date listed on the Product; (c) the half-life of the radioisotope contained in the Product; or (d) the Product’s specified number of uses. This warranty shall only be valid if such Products are stored in accordance with PerkinElmer’s instructions and used in accordance with the published specifications.
9.2.1 Custom Reagents. PerkinElmer shall use commercially reasonable efforts to meet all specifications requested by Customer for Products delivered pursuant to its custom labeling/synthesis service offerings. PerkinElmer makes no warranties related to Products generated from such custom services, and Customer shall be bound to pay for all custom reagent Products ordered hereunder, regardless of whether the requested specifications are met.
9.3 Software & Firmware. PerkinElmer warrants that Software (whether embedded in a Product or licensed separately) and firmware will substantially contain the functionality described in PerkinElmer’s program manuals and, when properly installed and operated on a computer meeting the specifications specified therein, will substantially perform in accordance therewith; provided, however, that PerkinElmer does not warrant that the operation of the processor, Software or firmware will be uninterrupted or error-free. The Warranty Period shall be for ninety (90) days from the date of delivery.
9.4 Services. For any installation and/or training Services, PerkinElmer warrants that it shall perform such Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, using personnel of required skill and experience. The Warranty Period shall be for thirty (30) days from the date of completion of such Services.
9.5 Exclusions. The following are excluded from the warranties in Sections 9.1 through 9.4:
9.5.1 A Product's loss, damage, defect or failure to perform due to: (i) any installation, modification, calibration, repair, or servicing of the Product, including but not limited to modifications, repairs to or servicing of any hardware, firmware or Software incorporated in or connected to the Product, not performed by PerkinElmer or a third party authorized by PerkinElmer; (ii) any accidents occurring at Customer’s site, including but not limited to, those caused by flood, fire, or other acts of nature; (iii) the negligence or willful misconduct of Customer or a third party; (iv) any movement of a Product to a location other than the location of original installation, unless such move is performed by PerkinElmer; (v) improper or inadequate maintenance; (vi) Customer or third party supplied hardware, software, interfaces, reagents, parts, consumables or other supplies; (vii) any combination or use of the Products with any incompatible equipment or ancillary products that may be connected to such Products; (viii) use or operation of a Product: (a) outside of the applicable Product specifications, or (b) inconsistent with the user manual provided with the Product; or (ix) improper site preparation.
9.5.2 PerkinElmer provides no warranties on any third party manufactured products. To the extent legally permissible, PerkinElmer will pass through to Customer any warranties provided by a third party manufacturer.
9.5.3 Any consumable or customer maintained components, including without limitation, chromatography columns, filaments, energy sources, lamps, power amplifier tubes, graphite tubes, sample cell holders, burner and furnace chambers, nebulizers, items in the sample path, valves, tips and tubing, other similar parts with limited life expectancy referenced in the Product's applicable operating manual, or any other item intended to be replaced by a customer.
9.6.1 PerkinElmer shall not be liable for breach of the warranties set forth in Sections 9.1 through 9.4 unless: (i) Customer gives prompt written notice and a reasonable description of the defective Products or Services to PerkinElmer during the Warranty Period; (ii) if applicable, PerkinElmer is given a reasonable opportunity after receiving the notice to examine such Products and Customer (if requested to do so by PerkinElmer) returns such Products to PerkinElmer's place of business at PerkinElmer's cost for the examination to take place there; and (iii) PerkinElmer reasonably verifies Customer's claim that the Products or Services are defective.
9.6.2 As Customer's sole and exclusive remedy for breach of the warranties in Sections 9.1 through 9.3, PerkinElmer agrees either to repair or replace, at PerkinElmer's sole option, any part or parts of such Products or Software which prove(s) to be defective within the applicable Warranty Period. Alternatively, PerkinElmer may at any time, in its sole discretion, elect to discharge its warranty obligations hereunder by accepting the return of any defective Product or Software pursuant to the terms set forth herein and refunding the purchase price paid by Customer, pro-rated over the lifetime of the Product or Software license term.
9.6.3 As Customer’s sole and exclusive remedy for a breach of the warranty in Section 9.4, PerkinElmer shall, in its sole discretion, (i) re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
9.6.4 THE REMEDIES SET FORTH ABOVE SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES AND PERKINELMER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 9.1 THROUGH 9.4.
9.7 Correction of Defects during Warranty Period.
9.7.1 PerkinElmer may attempt to diagnose and resolve defects over the telephone or electronically. Customer must follow the problem determination, resolution, and procedure that PerkinElmer specifies. If applicable, PerkinElmer may require the return of a specific part to its depot for service or to assist in problem determination. If PerkinElmer determines on-site work is required, a service technician will be scheduled. If Customer requests on-site work when a defect could have been remedied remotely, or if PerkinElmer responds to Customer’s notice of defect and no defect covered under the applicable warranty is found, PerkinElmer is entitled to compensation at its then standard rates for any work performed and costs it incurred due to Customer’s request. Failure to install and use available remote connectivity tools and equipment for direct problem reporting, remote problem determination, and resolution may result in increased response-time and additional costs to Customer.
9.7.2 If PerkinElmer determines that Products for which Customer requested warranty services are not covered by the applicable warranty and PerkinElmer provides repair services or replacement parts not covered by such warranty, Customer shall be responsible for payment of all costs for investigating and responding to such warranty service request at PerkinElmer’s then prevailing time and materials rates.
9.8 Disclaimer. EXCEPT AS SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PERKINELMER EXPRESSLY DISCLAIMS AND MAKES NO OTHER WARRANTIES WHATSOEVER WITH RESPECT TO PRODUCTS, SOFTWARE AND SERVICES, INCLUDING WITHOUT LIMITATION, ANY WARRANTY (A) OF MERCHANTABILITY; (B) OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. FURTHER, PERKINELMER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.
Infringement Indemnification. PerkinElmer shall indemnify Customer from and against any claim, suit, action, or proceeding brought against Customer by a third party to the extent it is based on an allegation that a Product directly infringes any patent, copyright, trademark, or other proprietary right enforceable in the country in which the Product is delivered to Customer, or misappropriates a trade secret in such country (a “Claim”). Indemnification for a Claim shall consist of the following: PerkinElmer shall (a) defend or settle a Claim at its own expense, and (b) pay any judgments finally awarded against Customer under a Claim or any amounts assessed against Customer in any settlements of a Claim. PerkinElmer’s obligations under this Section are conditioned upon Customer (i) giving prompt written notice of a Claim to PerkinElmer, (ii) permitting PerkinElmer to retain sole control of the investigation, defense or settlement of a Claim, and (iii) providing PerkinElmer with such cooperation and assistance as PerkinElmer may reasonably request from time to time in connection with the investigation, defense or settlement of a Claim. Notwithstanding the foregoing, PerkinElmer shall not settle any Claim on any terms or in any manner that would (i) require Customer to make a payment which PerkinElmer is not obligated by this Agreement to pay on behalf of Customer, or (ii) require Customer to make any admission against its interest, without Customer’s express written consent. Notwithstanding the foregoing, PerkinElmer shall have no obligation hereunder to defend Customer against any Claim (a) resulting from use of the Product other than as authorized in this Agreement, (b) resulting from a modification of the Product other than by PerkinElmer, (c) based on Customer’s use of the Product after PerkinElmer recommends discontinuation because of possible or actual infringement, (d) based on designs, specifications or modifications communicated by Customer which PerkinElmer satisfied, (e) based on Customer’s use of a superseded or altered release of Software if the infringement would have been avoided by use of a current or unaltered release of e Software made available to Customer, or (f) to the extent such Claim arises from or is based on use of the Product with other products, services, or data not supplied by PerkinElmer if the infringement would not have occurred but for such use. If, as a result of a Claim, Customer must stop using any Product (“Infringing Product”), PerkinElmer shall at its expense and option either (1) obtain for Customer the right to continue using the Infringing Product, (2) replace the Infringing Product with a functionally equivalent non-infringing product, (3) modify the Infringing Product so that it is non-infringing, or (4) accept the return of the Infringing Product and refund the purchase price paid for the Infringing Product, pro-rated over a sixty (60) month period from the date of initial delivery of such Product and less a reasonable amount for use, damage or obsolescence.
Limitation of Liability. IN NO EVENT SHALL PERKINELMER BE LIABLE TO CUSTOMER FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PERKINELMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL PERKINELMER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO PERKINELMER FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER. The aforementioned limitations of liability shall not apply to infringement claims under Section 10 or liability resulting from PerkinElmer's gross negligence or willful misconduct.
12.1 Distribution & Use Restrictions. Products sold by PerkinElmer hereunder are being provided to Customer as the end-user. Customer is not permitted to purchase Products for resale. Further, and without limiting the foregoing, Customer shall not (i) transfer, sell, or otherwise distribute Products to any third party, whether alone or in combination with other materials, (ii) modify Products for resale, or (iii) use Products to manufacture commercial products, in each case without prior written approval from PerkinElmer.
12.2 Regulatory. If purchased hereunder, Customer agrees to use IVD Products in accordance with the Product’s Intended Use as defined in the documentation and specifications provided by PerkinElmer with such Product. Where Product is labeled with For Research Use Only or a similar labeling statement and is not for use in diagnostic procedures, Customer acknowledges that the Product has not been approved, cleared, or licensed by the United States Food and Drug Administration or any other regulatory entity, whether foreign or domestic, for any specific intended use, whether research, commercial, or diagnostic.
12.3 Compliance with Law. Each party shall comply with all applicable laws, regulations and ordinances in performing its obligations under this Agreement. Each party shall maintain in effect all licenses, permissions, authorizations, consents and permits needed to carry out its obligations under this Agreement. Customer acknowledges that the Products and related technical information are subject to the applicable U.S. export control regulations and Customer shall comply with all applicable restrictions and prohibitions on sale, transfer, export, shipment or other supply of Products, directly or indirectly, to any person, entity or country, or for any activity. Customer shall provide to PerkinElmer any documentation necessary for shipment of Products to the Delivery Point.
12.4 Cancellation. Unless otherwise stated on the quotation, all orders once placed are non-cancellable, unless PerkinElmer consents to such cancellation in writing and Customer pays any applicable cancellation and/or restocking charges.
12.5 Waiver. No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12.6 Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder) when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the impacted party, including, without limitation: acts or omissions of the other party; acts of God, including flood, fire, earthquake, or explosion; mandatory or voluntary compliance with governmental regulations, requests, or actions; war, invasion or hostilities (whether war is declared or not); terrorist threats or acts, riot, or other civil unrest; national emergency; revolution or insurrection; epidemic; lockouts, strikes or other labor disputes (whether or not relating to either party's workforce); restraints or delays affecting carriers; inability or delay in obtaining raw materials or supplies of adequate or suitable quality; or telecommunication breakdown or power outage.
12.7 Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of PerkinElmer. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
12.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
12.9 Severability; Amendment and Modification. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
12.10 Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts, without giving effect to any choice or conflict of law provisions thereof. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal or state courts of the Commonwealth of Massachusetts, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The parties expressly agree to waive application of the United Nations Convention on Contracts for the International Sale of Goods.