These Terms and Conditions of Sale for Life Sciences Reagents (the “Terms”) apply to any reagents supplied by PerkinElmer relevant to the Life Sciences Reagent Business, whether through direct order or acceptance of a quotation or proposal by Customer (“Reagents Product(s)”). As used herein, “PerkinElmer” shall mean the entity listed on the document to which these Terms are attached and/or referenced, and “Customer” shall mean any person or entity purchasing Reagents Products from PerkinElmer. PerkinElmer and Customer are each a “Party” and when referred to collectively, “Parties”.
These Terms and the accompanying quotation, proposal, sales confirmation, bill of lading, and/or invoice document (collectively, this “Agreement”) comprise the complete and entire agreement between the Parties for the sale of Reagents Products, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral on this matter. These Terms prevail over, and PerkinElmer expressly disclaims, any pre-printed, standard or other terms set forth in (i) Customer’s purchase order or any other document ordering Reagents Products, and/or (ii) any third-party procurement platform, which are all hereby rejected and shall be void. Fulfilment 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.
If the Parties enter into a separately negotiated written agreement executed by its duly authorized representatives of the Parties for the supply of certain Reagents Products (“Specific Agreement”), then the Specific Agreement shall apply to orders as of the effective date of the Specific Agreement and only apply to orders of specific Reagents Products identified in the Specific Agreement.
- Intellectual Property
Customer acknowledges that all intellectual property rights (including but not limited to patent, trademark, copyright and trade secret) relevant to Reagents Products, are solely and exclusively owned by PerkinElmer or its Affiliates or granted by third parties to PerkinElmer and its Affiliates through license agreements. PerkinElmer’s sale of Reagents Products to Customer grants to Customer a limited, non-transferable right (i) to use as authorized by these Terms the quantity of Reagents Product purchased, and (ii) to use the applicable Reagents Products documentation and content contained therein (e.g., protocols, data and images) for Customer’s authorized use of the Reagents Products. Except as expressly permitted by these Terms, sale of Reagents Products to Customer does not grant Customer any other license rights to any PerkinElmer intellectual property. Any rights not expressly granted herein are reserved. “Affiliates” shall mean an entity that directly or indirectly Controls, is Controlled by, or is under common Control with a Party to this Agreement. “Control” means the direct or indirect power to direct or cause the direction of the management and policies of an entity or ownership of at least fifty percent (50%) of the outstanding voting shares of the subject entity.
By this reference, PerkinElmer informs Customer that KinEASE™ STK Reagent Products are covered by one or more patents and pending patent applications licensed from Millipore Corporation and were made pursuant to a co-development agreement between Millipore and a PerkinElmer entity. Further, certain Reagents Products are covered by one or more trademarks and/or patents of PerkinElmer, its Affiliates, and/or a third party, which may be described on a Reagents Product webpage, in a datasheet, or in other marketing materials. The names of actual companies and products mentioned herein and/or third-party trademarks, trade names, logos and patents contained herein are the intellectual property of their respective owners.
- Limited Use
3.1 Use of Reagents Products is subject to Customer’s acceptance of the Terms. If Customer does not accept the Terms, then Customer shall not issue a purchase order for such Reagents Products.
3.2. The purchase of Reagents Products conveys to the Customer a non-transferable right to use the purchased quantity of Reagents Products for in house research use (“RUO”) purposes only. Customer agrees that use of Reagents Products is limited to the country in which the Reagents Products were purchased unless PerkinElmer obtains PerkinElmer’s prior written consent to allow the use in another country. Customer is solely responsible for proper selection, application, processing and use of the Reagents Products and for adopting safety precautions as may be necessary. Further, Customer is solely responsible for complying with, handling, and using the Reagents Products in conformity with (i) generally accepted industry standards; (ii) all applicable laws, regulations and governmental policies; and (iii) any necessary approvals, permissions, authorizations and/or licenses as may be required for Customer’s uses, including without limitation, any right to use intellectual property rights of a third party necessary to perform Customer’s in-house research.
3.3. As a material condition of PerkinElmer providing Reagents Products to Customer, Customer shall not, directly or indirectly, use Reagents Products, their components, or derivatives thereof, for any purposes other than RUO and only then in accordance with the rights granted in this Agreement, including, without limitation for in vitro diagnostic, prophylactic or therapeutic purposes or in foods, drugs, biologics, medical devices or cosmetics, for humans or animals. Further, Customer shall not (1) transfer, sell or otherwise distribute Reagents Products to any third party, whether alone or in combination with other materials, (2) modify Reagents Products, their derivatives, and/or their components for resale, (3) use Reagents Products to manufacture commercial products, without prior written approval from PerkinElmer and subject to a separate royalty bearing license agreement; (4) make or have made any Reagents Products or any portion thereof; or (5) attempt to reverse engineer, disassemble, or otherwise perform any compositional, structural, functional or other analyses directed to learning the methodology, components, formulae, sequence, processes, make-up, or production of any Reagents Products or any portion thereof. A separate royalty-bearing license agreement with PerkinElmer shall be required for: (i) Any purchase of Reagents Products for transfer or resale (alone or as a component) to a third party for Commercial Purposes (as hereinafter defined); (ii) any purchases of Reagents Products that are identified as requiring a special license; and/or (iii) any cell line Reagents Products, excluding the cAMPZen™ and AequoZen™ frozen cells and membrane preparations, that are to be used for Commercial Screening (as hereinafter defined) or Contract Research (as hereinafter defined) purposes. It is Customer’s sole responsibility to secure any required intellectual property rights required to use Reagents Products for Customer’s purposes. Customer shall comply with any instructions or other limitations furnished by PerkinElmer relating to use of Reagents Products and not misuse Reagents Products in any manner. No license or immunity under any patent is either granted or implied by the sale of any of PerkinElmer's Reagents Products. PerkinElmer disclaims any and all responsibility for any injury or damage which may be caused by the failure of Customer or any other person to use Reagents Products in accordance with the conditions outlined herein. Any breach of this section shall immediately and automatically terminate the right to use Reagents Products as granted above.
3.4 Definitions for this Article 3 are as follows:
3.4.1. “Commercial Purposes” includes without limitation: (1) use of Reagents Products, their derivative, and/or their components in manufacturing; or (2) resale of Reagents Products and/or their components, whether or not such Reagents Products, their derivatives and/or their components are resold for use in research.
3.4.2. “Commercial Screening” means research or any other activities conducted by Customer for financial gain or other commercial purposes, except for Contract Research, and/or the use of cell lines (a) in small molecule and biologic drug discovery, including without limitation, initial target identification and validation, assay development, high throughput screening, hit identification, lead optimization, and selection of candidates for clinical development; (b) in connection with ADME (Absorption, Distribution, Metabolism and Excretion) testing; (c) in connection with drug potency or toxicity testing; or (d) in vivo screening of drug efficacy on tumor progression.
3.4.3. “Contract Research” means research, activities, or any other service conducted by Customer for or to any person or entity not a party to this Agreement for financial gain or other commercial purposes and/or the use of cell lines in support of any relationship or agreement between Customer and a third-party entity, and for which Customer does not retain, or is not granted, proprietary rights for material intellectual property generated under the work conducted pursuant to such relationship or agreement, rather the third-party entity receives a right, whether actual or contingent, to the results of the research.
- Confidentiality of Reagents Products
4.1. Customer agrees to maintain strict confidentiality of all non-public information received from PerkinElmer regarding Reagents Products’ information, specification and data such as custom products, custom fluorescent reagents and custom plasmids (collectively, “PerkinElmer Confidential Information”) and such PerkinElmer Confidential Information constitutes valuable intellectual property owned exclusively by the PerkinElmer.
4.2. Customer undertakes, from the date of placing the purchase order and for a period of five (5) years thereafter, not to disclose or communicate PerkinElmer Confidential Information to any third party. Notwithstanding the foregoing, to the extent PerkinElmer Confidential Information constitutes a trade secret under applicable law, Customer agrees to protect such trade secret(s) for so long as PerkinElmer Confidential Information qualifies as a trade secret under applicable law.
4.3. This obligation of confidentiality shall survive termination of these Terms but shall not apply to information which: (i) is available to the general public other than by a breach of confidentiality by Customer, (ii) was known to Customer without any limitation on use or disclosure prior to its receipt from PerkinElmer, (iii) is received from a third party without any obligation of confidentiality, (iv) was independently developed by Customer without reference to or reliance on any PerkinElmer Confidential Information, (v) is generally made available to third parties by PerkinElmer without restriction on disclosure, in each case as demonstrated by adequate written evidence of Customer, or (vi) is required by law to be disclosed (including as part of any regulatory submission or approval process) and then only when prompt written notice of this requirement has been given to PerkinElmer so that it may, if so advised, seek appropriate relief to prevent such disclosure provided always that in such circumstances such disclosure shall be only to the extent so required and where practicable shall be subject to prior consultation with PerkinElmer with a view to agreeing timing and content of such disclosure.
Purchase orders must be placed by fax or email to the contact information provided on PerkinElmer’s quotation. Purchase orders are only binding upon PerkinElmer’s written acceptance or its fulfillment of such purchase order, whichever occurs first. 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.
To be valid all purchase orders must include the following information:
- Seller’s product reference number (eg. 62IPAPEB for IP-One kit 1,000 tests)
- unit price
- delivery address
- billing address
- company contact details: name and email/phone number
- VAT number
- purchase order number
- Seller’s quotation or offer number
- Signature by an authorized representative of Buyer.
- Delivery Time
PerkinElmer shall use reasonable efforts to meet dates specified for the delivery of Reagents Products; however, all such dates are estimates only and subject to PerkinElmer’s availability. If PerkinElmer’s supply of Reagents Products 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. PerkinElmer’s delivery obligation for Reagents 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 Reagents Products are shipped FCA (Incoterms 2020) Shipping Point and Customer is responsible for all transportation, shipping and handling charges, which shall be prepaid and added to the invoice. Title to and risk of loss of Reagents Products passes to Customer upon shipment. Notwithstanding the foregoing and unless otherwise indicated on PerkinElmer’s quotation, for Reagent Products sales within Australia, such Reagent Products are shipped DDP (Incoterms 2020) within Australia and PerkinElmer is responsible for all transportation, shipping and handling charges to the Delivery Point. For orders within Australia, title to and risk of loss of Reagents Products passes to Customer upon delivery. Where Customer furnishes special transportation instructions, any special expense is to be borne by Customer, including any special handling, packaging and additional freight charges. PerkinElmer may, in its sole discretion, without liability or penalty, make partial shipments of Reagents 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 Reagents Products shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase order.
- Inspection, Acceptance, and Returns
7.1. Customer shall inspect Reagents 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 Reagents 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 Reagents Products unless it notifies PerkinElmer as indicated herein and furnishes evidence as required by PerkinElmer. If Customer receives Reagents Products where defects or nonconformities are not apparent upon initial examination or are not discovered until after the Inspection Period has passed, such Reagents Products shall be subject to the warranty set forth in Section 10 below.
7.2. 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. Return orders cannot be accepted unless prior notification has been sent by the Customer and the return has been approved in writing by the PerkinElmer. Customer shall ship, at PerkinElmer’s expense, Nonconforming Products to the facility designated by PerkinElmer. PerkinElmer may instruct Customer to destroy any Nonconforming Products in lieu or returning them and in such case, Customer shall certify to such destruction. If PerkinElmer exercises its option to replace Nonconforming Products, PerkinElmer shall, after receiving Customer’s shipment of Nonconforming Products or certification of destruction per PerkinElmer’s request, ship to Customer the replaced Reagents 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.
7.3. Except as provided in this Agreement, Customer has no right to return Reagents Products to PerkinElmer.
- Steri-Packaged Reagents Products
Reagents Products described as being supplied as “Steri-packaged” are prepared with additional precautions to substantially reduce product bioburden and enhance product stability. PERKINELMER MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE STERILITY OR NON-PYROGENICITY OF THESE OR ANY REAGENTS PRODUCTS.
- Prices and Payment
9.1. Prices: Customer shall purchase Reagents Products 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 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.
9.2. 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.
9.3. Payment Terms: Unless otherwise set forth in the quotation, Customer shall pay all invoiced amounts 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 shall be entitled to charge statutory interest on late payments without an obligation on PerkinElmer to provide prior notice of its intent to charge such interest. The interest rate shall be a) the refinancing interest as published by either as the case may be (i) the European Central Bank or (ii) Monetary Authority of Singapore or (iii) US Federal Reserve, from time to time plus 10%, or b) the highest rate permissible under applicable law, calculated daily from the date a payment becomes past due 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. For sales made under French law (Article L.441-6 and D.441-5 of the French commercial code) PerkinElmer shall be entitled to charge the payment of a €40 lump sum indemnity for recovery costs. 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 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.
- Limited Warranty
10.1. PerkinElmer warrants only to Customer that Reagents Products will materially conform to PerkinElmer’s published specifications, at the time of shipment. The “Warranty Period” shall be for: (a) the expiration or “use by” date listed on the Reagents Product; (b) the half-life of the radioisotope contained in the Reagents Product; (c) the Reagents Product’s specified number of uses; or (d) thirty (30) days from the date of delivery of such Reagents Products, if the Reagents Products specification sheet does not contain information applicable to sub-sections (a) through (c) herein. This warranty shall only be valid if such Reagents Products are stored in accordance with PerkinElmer’s instructions and used in accordance with the published specifications. PerkinElmer will carry out its delivery obligations with due care and skill.
10.2. For any orders for the development of non-catalog Reagents Products delivered pursuant to PerkinElmer’s custom labeling/synthesis service offerings, which expressly excludes any of PerkinElmer’s OnPoint services such as custom assay development services (“Custom Services”), PerkinElmer shall use commercially reasonable efforts to meet all specifications requested by Customer for such Reagents Products. PerkinElmer makes no warranties related to Reagents 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. For clarity, the performance of any Custom Services may be performed in accordance with a separate services agreement and the purchase of the resulting products from such services will be made in accordance with these Terms, or if there is no separate services agreement then the attached Addendum A to these Terms, incorporated herein by this reference, shall apply in addition to these Terms.
10.3. In the event of any breach of this warranty, PerkinElmer will, at its sole discretion and as Customer’s sole remedy, either refund the price paid for such non-conforming Reagents Products or replace any non-conforming Reagents Products at no charge to the Customer. Said refund or replacement is conditioned on Customer (a) having followed the storage and use instructions for such affected Reagents Products and (b) giving written notice to the PerkinElmer during the Warranty Period. Failure of Customer to give said notice shall constitute a waiver by Customer of all claims hereunder with respect to said Reagents Products. This limited warranty is the sole and exclusive warranty and sets forth the exclusive remedies for all Reagents Products and is in lieu of all other warranties
10.4. 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 AND SOFTWARE, 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..
- 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 GIVING RISE TO SUCH CLAIM UPON WHICH LIABILITY IS BASED. The aforementioned limitations of liability shall not apply to liability resulting from PerkinElmer's gross negligence or willful misconduct.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE COMPLETE EXCLUSION OR LIMITATION OF LIABILITY OF CLAIMS AND DAMAGES AS SET FORTH IN THIS AGREEMENT, PERKINELMER’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- REACH European regulations and compliance for EU countries
Some Reagents Products contain 0.1% Triton or more, a molecule defined as a substance of very high concern (SVHC) by the European REACH regulations. In such a case, Reagents Products’ package insert, as well as its corresponding Material Safety Data Sheet, shall specify this fact. PerkinElmer reminds its European customers that such Reagents Products must be used in compliance with the REACH regulations, under the following conditions: i) for in vitro research in appropriate and controlled premises by qualified researchers, ii) subsequent waste is collected and treated, and iii) the cumulated amount of Triton handled does not exceed 1 ton per year/legal entity.
PerkinElmer’s waiver of a breach or default under these Terms will not be a waiver of any subsequent breach or default. Failure of PerkinElmer to enforce compliance with any term or condition of these Terms will not constitute a waiver of such term or condition then or in the future. Unless otherwise required by law, an action or proceeding by Customer to enforce an obligation, duty, or right arising under these Terms must be commenced within one year after the cause of action accrues or such claim will be deemed waived and relinquished.
- Law & Jurisdiction
If these Terms are entered into with a PerkinElmer entity located outside of Europe and Australia, then these Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to the conflicts of law principles thereof. Any disputes relating to these Terms shall be adjudicated in the state or federal courts in the Commonwealth of Massachusetts, and Customer hereby consents to the exclusive jurisdiction of such courts for purposes of any such litigation.
If these Terms are entered into with a PerkinElmer entity located in Europe, then these Terms shall be governed by and construed in accordance with the laws of the country in which the PerkinElmer entity has its registered offices, without regard to the conflicts of law principles thereof. Any disputes relating to these Terms shall be adjudicated in the courts where PerkinElmer has its registered offices, and Customer hereby consents to the exclusive jurisdiction of such courts for purposes of any such litigation.
If these Terms are entered into with a PerkinElmer entity located in Australia, then these Terms shall be governed by and construed in accordance with the laws of the State of Victoria, Australia, without regard to the conflicts of law principles thereof. Any disputes relating to these Terms shall be adjudicated in the courts of the State of Victoria, Australia, and Customer hereby consents to the exclusive jurisdiction of such courts for purposes of any such litigation.
Customer shall not assign, sublicense nor otherwise transfer, either voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law or otherwise, these Terms nor any rights under these Terms without the express prior written consent of PerkinElmer and any purported attempt to do so without such consent shall be void.
- Force Majeure
PerkinElmer shall not be liable for the failure to perform its obligations, including meeting delivery schedules, under these Terms, due to events beyond its reasonable control including, but not limited to, pandemics, strikes, riots, wars, fire, flood, shortages, power outages, acts of God or acts in compliance with any applicable law, regulation or order (whether valid or invalid) of any court or governmental body, including those which prevent or interfere with the manufacture or delivery of Reagents Products. In such case, PerkinElmer shall give Customer reasonable written notice with details of such event. Dates by which PerkinElmer’s performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
- Partial Invalidity
If any portion of this these Terms is illegal, or invalid or unenforceable under present or future laws effective during the term of these Terms, then and in that event, the remainder of these Terms shall not be affected thereby, and the parties intend that in lieu of each such illegal, or invalid or unenforceable portion, there will be added as part of these Terms a clause or provision as similar terms to such illegal, invalid or unenforceable clause or provision as maybe possible and be legal, valid and enforceable.
These Terms do not create an agency relationship or partnership between the parties. Each party is an independent contractor.
If Customer has a dispute with PerkinElmer or becomes subject to insolvency proceedings while having outstanding amounts owed to PerkinElmer, Customer will promptly send written notice by (a) certified Mail duly addressed, postage prepaid or (b) by overnight courier postage prepaid to PerkinElmer’s corporate headquarters: Attn: Legal Department, 940 Winter Street, Waltham, MA 02451 USA. PerkinElmer may provide a substitute address by written notice to Customer which will become effective upon receipt. Notices to Customer will be sent to the Customer’s invoice address.
- 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.
Custom Services: Additional Terms and Conditions
ONLY APPLICABLE FOR CUSTOM SERVICES, EXCLUDING CUSTOM ASSAY DEVELOPMENT SERVICES
This Addendum A (“Addendum”) to the Terms shall apply if the quotation or proposal prepared for Customer details the provision of Custom Services, unless PerkinElmer and Customer enter into a separate services agreement signed by both parties. These terms and conditions are in addition to the terms and conditions in the Terms and are made a part of and incorporated into the Terms. In case of conflict between the terms in this Addendum and the terms in the Terms, then this Addendum shall take precedence.
- PRECURSOR. Customer is required to supply chemically pure compounds, purified biological material, and/or cell lines (hereinafter "Precursor(s)") for the products to be generated by PerkinElmer pursuant to the quotation or proposal that references the Terms. In the event the Precursor(s) is(are) destroyed in whole or in part during manufacture of the products by PerkinElmer, Customer shall have no claims whatsoever, including, without limitation, claims for damages of any kind, against PerkinElmer or any of its employees or representatives as a result of such destruction. At Customer's election, PerkinElmer will dispose of or return to Customer, at Customer's sole expense, all unused Precursor(s) provided by Customer when the work under the quotation or proposal is completed or otherwise terminated.
- COMPLETION DATE. The date for the completion of service to create the custom Reagents Products is estimated from the later of the date of receipt by PerkinElmer of (a) the purchase order, (b) the Precursor(s), or (c) all information required to produce the Reagents Product(s) from the Precursor(s). This date is an estimate and subject to change. Whenever possible, PerkinElmer will provide Customer with advance notice of such a change; however, PerkinElmer shall have the right to change the estimated completion date, and Customer shall have no claims whatsoever, including, without limitation, claims for damages of any kind, against PerkinElmer or any of its employees or representatives as a result of such a change.
- CANCELLATION. PerkinElmer may encounter unforeseen difficulties in the preparation and purification of products which conform to the specifications and terms quoted in the quotation or proposal. In such event, PerkinElmer shall have the right to cancel the quotation or proposal, and Customer shall have no claims whatsoever, including, without limitation, claims for damages of any kind, against PerkinElmer as a result of such a cancellation. Whenever reasonably possible, PerkinElmer will offer a modified quotation or proposal.
- COMPLIANCE. Without limiting the use restrictions of Section 3 of the Terms, Customer covenants to PerkinElmer that Customer shall test the Precursor(s) and/or the resulting Reagents Products for any risks to health or the environment, comply with all applicable regulatory requirements, take appropriate precautions to protect persons and the environment from such risks; enforce appropriate methods of research to minimize such risks, implement safety assessments and procedures relative to the procurement, storage, use and disposal of the materials involved, and issue all appropriate warnings and information to users of the Precursors(s) and/or resulting Reagents Products.
- NO WARRANTY & LIMITATION OF LIABILITY. The following disclaimer of warranties and limitation of liability expressly supersedes and replaces such provisions in the Terms, specifically Section 11.1 and Section 13: PERKINELMER MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE REAGENTS PRODUCTS ARISING HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR THAT SUCH REAGENTS PRODUCTS MAY BE USED WITHOUT INFRINGING THE PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTIES. PERKINELMER SHALL NOT BE LIABLE TO CUSTOMER, NOR SHALL PERKINELMER BE RESPONSIBLE FOR INDEMNIFYING CUSTOMER, FOR USE BY CUSTOMER OF THE REAGENTS PRODUCTS GENERATED PURSUANT TO THE PROPOSAL OR QUOTATION. PERKINELMER SHALL BE UNDER NO LIABILITY WHATSOEVER TO CUSTOMER (WHETHER IN NEGLIGENCE OR OTHERWISE) FOR ANY EXPENSE, LOSS, DAMAGE OR INJURY OF ANY KIND (INCLUDING ANY LOSS OF PROFIT OR OTHER CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES) SUSTAINED BY CUSTOMER OR ANY THIRD PARTY ARISING OR INCURRED IN CONNECTION WITH THE PROPOSAL OR QUOTATION OR DERIVING DIRECTLY OR INDIRECTLY OUT OF THE PROVISION OR USE OF THE REAGENTS PRODUCTS ARISING HEREUNDER. IN NO EVENT SHALL PERKINELMER’S LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THE PROPOSAL OR QUOTATION OR DERIVING DIRECTLY OR INDIRECTLY OUT OF THE PROVISION OR USE OF THE REAGENTS PRODUCTS ARISING HEREUNDER EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR SUCH REAGENTS PRODUCTS.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE COMPLETE EXCLUSION OR LIMITATION OF LIABILITY OF CLAIMS AND DAMAGES AS SET FORTH IN THIS AGREEMENT, PERKINELMER’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW
- INDEMNIFICATION. In case of any actual or alleged third party claim of infringement against Customer or PerkinElmer and its affiliates in the performance of the work described in the quotation or proposal, Customer will indemnify and hold harmless PerkinElmer and its affiliates, and their officers, directors, employees, agents and reimburse such parties for any expenses incurred in connection with such claim. The parties will immediately in form each other of any of such claims.
Updated on June 22, 2021