1. DEFINITIONS AND RELATED MATTERS
1.1 “Buyer” means the customer entity on the Sales Quote or, if no Sales Quote was issued, the name of the purchaser on the Purchase Order submitted to Fluidigm to purchase the Products.
1.2 “Consumables” means all items to be supplied by Fluidigm except Instruments and Software.
1.3 “Documentation” means the user documentation accompanying, or provided by Fluidigm regarding, or for use in connection with, a Product or related Service, including any documentation listed on Fluidigm’s website at https://www.fluidigm.com/legal/notices.
1.4 “Fluidigm” means the Fluidigm entity on the Sales Quote or, if none, Fluidigm Corporation or one of its directly or indirectly wholly-owned subsidiaries.
1.5 “Instrument” means all electronic equipment, hardware and other electronic or mechanical items agreed to be supplied by Fluidigm, excluding any consumables and spare parts sold separately.
1.6 “Product” means each item, including any Instrument, Software and/or Consumable, listed in the applicable Sales Quote or, in the event a Sales Quote was not issued, listed in Fluidigm’s then-current price list applicable to Buyer’s jurisdiction and identified in a Purchase Order.
1.7 “Services” means all advice given and services performed by Fluidigm.
1.8 “Software” means any firmware, software or data compilations (i) identified in the Agreement or (ii) provided by Fluidigm in connection with the installation or operation of any Instrument. For the avoidance of doubt, Software shall not include any "open source" firmware, software or data compilations, as any such "open source" firmware, software or data compilations will be subject to the terms and conditions set out in the relevant "open source" license.
2. TERMS, CONDITIONS AND ORDERS
2.1 Terms and Conditions. Unless otherwise agreed in writing between the parties, the sale or license of any Products or Services (except Software, which is only licensed) by Fluidigm to Buyer shall be governed by these Sales and License Terms and Conditions, including any addenda attached hereto (collectively, “these Terms”), together with any written sales quotation issued by Fluidigm (a “Sales Quote”), any other terms and conditions expressly agreed to in writing by an authorized Fluidigm representative expressly referencing these Terms, and Buyer’s statement of the following information, and only such information: (i) the name and identity of the Products and/or Services purchased, (ii) quantity, (iii) bill to address, (iv) ship to address, and (v) if accurate, price (items (i)-(v), collectively, the “Purchase Order Specifics”), set forth on Buyer’s purchase order or other instrument submitted by Buyer or any of its authorized representatives in any manner, including by facsimile, e-mail PDF or other electronic delivery, for or regarding the purchase of Products or Services from Fluidigm or its authorized representatives, and only if accepted by Fluidigm (a “Purchase Order”). These Terms, the Sales Quote (if any) and the Purchase Order Specifics shall be referred to herein collectively as this “Agreement.” If any applicable Sales Quote is deemed to constitute an offer by Fluidigm, Buyer’s acceptance, whether by Purchase Order or otherwise, is expressly limited to the terms of this Agreement and to the exclusion of any other terms and conditions, including any terms and conditions referenced in any Purchase Order. Such other terms and conditions are hereby deemed to be material alterations, and notice of objection to which is hereby given. If Buyer’s submission of a Purchase Order, whether or not in response to a Sales Quote, is deemed to constitute an offer, Fluidigm’s acceptance is expressly conditioned on Buyer’s assent to and acceptance of the terms and conditions of these Terms and to the exclusion of any other terms and conditions that are in any way inconsistent with these Terms (except the Purchase Order Specifics); such other terms and conditions, including any in Buyer’s Purchase Order, are hereby deemed to be material, and notice of objection to which is hereby given.
2.2 Acceptance of Orders. No Purchase Order shall be binding upon Fluidigm unless and until accepted by Fluidigm, in writing or otherwise, and Fluidigm shall have no liability or obligation to Buyer with respect to orders that are not accepted. Purchase orders placed under a Sales Quote cannot be rescheduled or cancelled without the prior written approval of Fluidigm. No partial shipment of an order shall constitute the acceptance of the entire order, absent the acceptance by Fluidigm of such entire order. For Instrument orders, Fluidigm may require Buyer to identify in its Purchase Order the individual responsible for ensuring that Buyer provides a prepared and available installation site in accordance with Fluidigm’s site preparation specifications. Any provision in Buyer’s Terms (as defined below) permitting Buyer at its convenience to unilaterally change or cancel a Purchase Order (in whole or in part) once accepted by Fluidigm shall be void and of no effect.
2.3 Contract Documents & Order of Precedence. Notwithstanding Section 2.1 above, if a Purchase Order that is accepted by Fluidigm contains or incorporates by reference any different or additional terms and conditions, and to the extent such different or additional terms and conditions are ultimately deemed part of the contract between Buyer and Fluidigm (e.g., by express written agreement of the parties, or by application of legal doctrine), then such contract shall consist of the following documents (notwithstanding any provision in such documents to the contrary): (1) the Sales Quote(s) (if any) issued by Fluidigm; (2) the Purchase Order Specifics; (3) these Terms; and (4) any other terms and conditions contained in, or incorporated by reference into, Buyer’s order. Any conflict among these documents shall be resolved by giving them priority in the order listed above. Items (2) and (4) are collectively referred to herein as “Buyer’s Terms.”
3. LICENSE AND USE RESTRICTIONS
3.1 Limited License. Subject to these Terms, and to all applicable end user license agreement(s), notices, terms, conditions and/or use restrictions (i) printed on any Product packaging, label or insert, (ii) appearing in or included with the Software or any Documentation, or (iii) listed on Fluidigm’s website at https://www.fluidigm.com/legal/notices, Fluidigm grants to Buyer a non-exclusive, non-transferable, non-sublicensable license to use the Products sold and/or licensed to Buyer by Fluidigm or its authorized representative only in accordance with the applicable, then-current Documentation.
3.2 Certain Use Restrictions. Buyer acknowledges that the Products do not have United States Food and Drug Administration (“FDA”) or equivalent non-U.S. regulatory agency clearance or approval (“Approval”). Buyer acknowledges that the Products are labeled and intended FOR RESEARCH USE ONLY and NOT FOR USE IN DIAGNOSTIC PROCEDURES. Unless otherwise expressly stated by Fluidigm in writing, no claim or representation is made or intended by Fluidigm that any Product has any Approval for use in any diagnostic or other clinical procedure in connection with any law, regulation or governmental policy (collectively, “Regulatory Laws”). Buyer agrees that if it elects to use a Product for a purpose that would subject Buyer, its customers or any Product to the application of Regulatory Laws, Buyer shall be solely responsible for obtaining any required Approvals. Except where authorized by Fluidigm in writing or prohibited by law, Buyer agrees not to: (i) transfer a Product to any third party (including, but not limited to, re-sale, donation, or loan); (ii) use any non-Fluidigm consumables or reagents with any Product, except as expressly provided in the Documentation or where approved in writing by Fluidigm; (iii) use any Product(s) to manufacture commercial products; or, (iv) use any Fluidigm consumables or reagents with any non-Fluidigm instrument, device or system. Except as otherwise expressly set forth in writing by Fluidigm, Buyer hereby agrees Consumables are sold and licensed for SINGLE USE ONLY and MAY NOT BE REUSED.
4. PRICES, TAXES AND PAYMENT
4.1 Prices. The price for any Product or related service shall be the applicable price stated in the Sales Quote, or, if no Sales Quote is issued, in Fluidigm’s then-current price list applicable to Buyer’s jurisdiction, which is subject to change without notice. Fluidigm’s Sales Quotes are only valid for thirty (30) days from the quotation date unless otherwise expressly stated in the Sales Quote.
4.2 Taxes; Shipping Charges. Unless otherwise expressly stated in the Sales Quote, Buyer's purchase price does not include any U.S. or non-U.S. federal, state, local, sales, VAT, GST or other taxes, duties, or governmental assessments (“Taxes”) that may be applicable to the Products or Services, nor does the price include freight and insurance; Buyer will be responsible for any such charges specified on Fluidigm’s invoice(s). All Taxes shall be paid or reimbursed by Buyer (other than taxes on Fluidigm’s net income), or in lieu thereof, Buyer shall provide Fluidigm with a tax exemption certificate acceptable to the applicable taxing authorities. Taxes and other charges payable by Buyer may be billed as separate items on Fluidigm’s invoice(s). Buyer shall be solely responsible for any non-United States withholding taxes (e.g., if Buyer is located or incorporated outside the United States) and, if withholding taxes apply, Buyer shall gross up the amount payable to ensure post-withholding remittance to Fluidigm at the amounts quoted and invoiced by Fluidigm.
4.3 Payment. Unless otherwise expressly stated in the Sales Quote, Fluidigm shall invoice Buyer for a Product, and any and all Services ordered in connection with a Product, upon shipment of the Product; or, if a Service Plan (as defined in Section 7.2) is purchased separately from the purchase of a Product, on the applicable start date of such Service Plan; or, if no such start date is provided, upon Fluidigm’s acceptance of Buyer’s purchase order, and such invoice shall cover Buyer’s purchase price for the Product and/or related Services and any freight, insurance, Taxes or other applicable costs initially paid or payable by Fluidigm to be ultimately borne by Buyer, and Buyer shall pay all such amounts. Unless otherwise expressly stated in the Sales Quote or, in the event a Sales Quote is not issued, in Fluidigm’s then-current price list applicable to Buyer’s jurisdiction, all invoices shall be issued and payable in U.S. Dollars, and are due and payable thirty (30) days from date of invoice, subject to credit approval. Each delivery shall be considered a separate and independent transaction and payment therefor made accordingly. Amounts outstanding thirty (30) or more days from the date of invoice shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum allowed by applicable law, if less. Notwithstanding the foregoing, if Buyer is an agency of the U.S. Government, payment will be made in accordance with the Prompt Payment Act, 31 U.S.C. 39 et seq. Buyer shall pay all of Fluidigm’s costs and expenses (including reasonable attorneys' fees) to enforce and preserve Fluidigm’s rights under this section. If Buyer fails to make any payment when due or if Fluidigm deems Buyer to be or to have become un-creditworthy, then, without prejudice to Fluidigm’s rights, Fluidigm may, at its option, cancel and/or suspend future deliveries, and/or require prepayment, letter of credit, or other payment method(s).
5. DELIVERY AND ACCEPTANCE OF PRODUCTS
5.1 Delivery and Acceptance. Unless otherwise expressly stated in the Sales Quote, (i) all deliveries to destinations within the United States are F.O.B. shipping point, (ii) all deliveries to destinations outside the U.S. are FCA Fluidigm’s facility (ICC Incoterms 2010), and (iii) Buyer must take possession of delivery no later than six (6) months after the date of the Purchase Order referencing the applicable Product(s). Fluidigm’s title (except for Software, which is only licensed) and all risk of loss passes to Buyer, and Fluidigm’s liability as to delivery ceases upon delivery of the Product(s) at the F.O.B./FCA shipping point. For avoidance of doubt, if the above-identified shipping terms are deemed not to apply, title and risk of loss shall pass to Buyer upon transfer of the Product(s) from Fluidigm to the carrier unless both parties agree otherwise in advance and in writing. Unless specific shipping instructions have been agreed to in writing between Fluidigm and Buyer, Fluidigm will ship in accordance with its standard practices. Fluidigm may also, in its sole discretion, postpone delivery of an Instrument due to Buyer’s failure to provide a prepared and available installation site in accordance with Fluidigm’s site preparation specifications or other factors within Buyer’s reasonable control. For multiple unit and/or multiple Product orders, Fluidigm may deliver such orders in installments, and each installment shall be deemed to be a separate sale. Fluidigm may issue a separate invoice for each installment, which shall be paid without regard to prior or subsequent installments. All Products shall be conclusively and irrevocably deemed accepted without qualification by Buyer upon delivery. Buyer, however, will notify Fluidigm or its representative in writing of any nonconformity to Fluidigm’s extant specifications promptly after delivery. Fluidigm shall be entitled to repair or replace damaged, missing or nonconforming Products, and such repair or replacement shall constitute Buyer’s sole and exclusive remedy, and Fluidigm’s sole liability and obligation, for any damaged, missing or nonconforming Products.
5.2 Inspection and Installation. Without limiting the preceding section, Buyer shall promptly visually inspect any Product upon receipt and notify Fluidigm in writing of damage or missing parts that Buyer notes. If Buyer fails to comply with this section, Buyer shall be deemed to have waived its rights to claim incorrect or incomplete delivery or packaging and any related warranty rights. If Fluidigm has agreed to install the Instrument, it is Buyer's responsibility, at Buyer’s cost, to prepare the installation site in accordance with Fluidigm’s site preparation specifications (including no hazardous or unsafe conditions) and, unless otherwise agreed to by Fluidigm in writing, to move the Instrument from Buyer’s delivery dock or receiving location to the place of installation. Buyer shall have appropriate Buyer personnel present at any such installation.
6. LIMITED WARRANTIES ON PRODUCTS
6.1 Limited Warranty and Remedy for Instruments and Software. Fluidigm warrants to and only to Buyer that, for thirteen (13) months from the date of shipping (the “Instrument Warranty Period”), the Software and Instruments shall be free from defects in material and workmanship, and conform to Fluidigm’s published specifications at the time of purchase in all material respects; provided, however, that for purchases of CyTOF® XT, Helios™ or Hyperion™ Instruments, the Instrument Warranty Period shall be the earlier of (a) 12 months from the date of installation or (b) 18 months from date of shipment. Buyer’s sole and exclusive remedy, and Fluidigm’s sole and exclusive liability, under the foregoing warranty shall be for Fluidigm to repair or replace Software and Instruments, as determined by Fluidigm in its reasonable discretion. Nonconforming Instruments will be serviced at Buyer's facility or, at Fluidigm’s option, Fluidigm’s facility. If service is performed at Fluidigm’s facility, Fluidigm will bear the shipping costs. This limited warranty is subject to certain exceptions listed below.
6.2 Limited Warranty and Remedy for Service Parts. Fluidigm warrants, only to Buyer, that spare, replacement or upgrade parts, including Instrument hardware upgrades, (collectively, “Service Parts”)that are purchased by Buyer from Fluidigm hereunder or pursuant to the terms of Section 7.5 and installed by a Fluidigm service engineer subsequent to Instrument installation will be free of defects in materials and workmanship on the date of delivery, provided that Fluidigm receives Buyer’s written warranty claim during a period of the earlier of ninety (90) days from the date of installation or one hundred twenty (120) days from the date of delivery. Buyer’s exclusive remedy, and Fluidigm’s sole liability and obligation, under this warranty are replacing or, at Fluidigm’s option and in its sole discretion, giving credit for, any Service Parts not meeting the above warranty for which written notice is provided to Fluidigm within the applicable period. Service Parts that are not installed by a Fluidigm service engineer are sold “AS IS,” without any warranty, statutory, express or implied. The installation of an Instrument hardware upgrade does not extend or restart any Instrument warranty, but the parts comprising the Instrument upgrade are covered by the foregoing Service Parts limited warranty to the extent applicable. This limited warranty is subject to certain exceptions listed below.
6.3 Exceptions. These warranties shall not apply to, and shall be void for, any Product that (i) has been damaged due to improper or abnormal use, storage, or operating environment, or any abuse, neglect, negligence or accident, including, without limitation, failure to properly perform routine maintenance and maintain the Product site in accordance with Fluidigm’s requirements or the use of the Product with any non-Fluidigm product (except as may be specifically recommended, with respect to standard laboratory reagents, tools and equipment ancillary to use of the Product, in the then-current Documentation for that Product), (ii) has been used outside of the country of sale, (iii) has been repaired, altered, disassembled or reassembled, or moved within, or removed from, Buyer’s facility by persons other than Fluidigm or its designee, other than repair or replacement of a third-party good by an authorized service provider, (iv) has failed due to externally caused short circuits, incorrect voltages, failure or fluctuation of electrical power, lightning, static or other improper external inputs, or due to Force Majeure, (v) has been used with any item other than Fluidigm Products (except as may be set forth in the extant applicable Fluidigm protocol for use of a Product, with associated standard laboratory tools and equipment ancillary to use of such Product), or (vi) is a consumable. For example, use of an Instrument with non-Fluidigm integrated fluidic circuits (with or without carriers, collectively “IFCs”) voids the warranty for that reader, unless specifically authorized in writing by Fluidigm. Buyer acknowledges that failure to comply with any restriction of use set forth herein will invalidate any warranty provided herein and any applicable Service Plan. For clarity, and without limitation, use of an Instrument with consumables other than the Consumables specified for use with that Instrument will void the warranty for that Instrument. Without limiting the foregoing, with regard to Software, these warranties shall not apply to any failure to conform that is caused by the use or operation of the Software in an environment other than that intended or recommended by Fluidigm, or modifications to the Software not made or authorized by Fluidigm. These warranties are not transferable or assignable, including, without limitation, any re-sale of a Product, and any such attempt to transfer or assign these warranties shall be void. Notwithstanding the foregoing, these warranties may be assigned for any Product that is acquired as a business asset in conjunction with a merger or acquisition of Buyer, or of all or substantially all of Buyer’s business assets of which the Product is a part. Fluidigm neither assumes, nor authorizes any other person to assume for it, any other obligations or liabilities in connection with the sale of Products. Repair or replacement of a Product shall not extend the original warranty period for that Product. Fluidigm’s warranties do not cover de-installation, re-installation, or transportation of products.
7. LIMITED WARRANTIES ON SERVICE PLANS
7.1 Service and Maintenance. After the Instrument Warranty Period, Fluidigm may offer to provide extended service and maintenance for such Instrument pursuant to a separate written Service Plan that may be purchased by Buyer from Fluidigm.
7.2 Service Plans. If Buyer has purchased a separate written contract for repair services for an Instrument (a “Service Plan”), the Sales Quote and the applicable then-current Documentation, if any, for such Service Plan will describe its level and features. During the Service Plan term, Fluidigm or its designee will provide the services described in the Service Plan (the “Covered Services”). Maintenance, repairs and replacements may be effected under the Service Plan with reconditioned or refurbished Products, parts or subassemblies. Any updates or upgrades to the Software, when delivered, shall become part of the Software and shall be subject to the same end user license agreement(s), notices, terms, conditions and use restrictions unless otherwise expressly stated in writing by Fluidigm. Covered Services exclude upgrades to hardware and Software for feature enhancements. Service Plans may not be transferred or assigned without Fluidigm’s prior written consent. All replaced parts removed from an Instrument in connection with any services provided by Fluidigm or its designee shall become the property of Fluidigm upon their replacement. Fluidigm may, at no charge to Buyer, provide for the temporary use of its products by Buyer for any period during which Fluidigm is performing repairs of the Products pursuant to a Service Plan. Such temporary use may be subject to additional terms, including, without limitation, the payment of fees for of such temporary products if such products are not returned promptly to Fluidigm after a repaired or replacement Product has been provided to Buyer.
7.3 Service Limitations. Buyer agrees to follow the operation procedures published by Fluidigm, including procedures for routine maintenance. Fluidigm shall have no obligation to provide any service or parts required as a result of (i) failure of Buyer to maintain the Software within one major release of the most current O/S Software release made available by Fluidigm to Buyer or (ii) Buyer’s failure to comply with items (i) through (vi) in Section 6.3. Buyer shall reimburse Fluidigm at Fluidigm’s then-current service call fees, including all labor, parts and travel charges, for all work that Fluidigm or its designee incur in investigating or remedying any damage or malfunction that Fluidigm reasonably determines to not be part of the Covered Services.
7.4 Non-Covered Equipment. Any and all instruments, software and other products, and any parts or subassemblies of the foregoing, that are not provided by Fluidigm or its designee, as well as any external uninterruptible power supply (UPS), shall be deemed “Non-Covered Equipment.” Fluidigm shall have no obligation to provide Covered Services for Non-Covered Equipment; moreover, and notwithstanding anything herein to the contrary, Fluidigm shall have no obligation to provide Covered Services in connection with any Instrument, part or subassembly: (i) that has been substantially altered (other than by Fluidigm or its designee); (ii) that does not incorporate all of Fluidigm’s engineering improvements and other fixes that Fluidigm requested that the Buyer implement; (iii) that incorporates Non-Covered Equipment or has Non-Covered Equipment attached; (iv) that has been operated in conditions outside of Fluidigm’s environmental or electrical site specifications, as defined in the applicable, then-current Documentation; (v) that has been operated in hazardous environments or used to analyze hazardous materials that may cause residual contamination; or (vi) that has been repaired or maintained by anyone other than Fluidigm or its designee, except such routine maintenance as set forth in the applicable, then-current Documentation. Instruments that are no longer offered for sale by Fluidigm (“Obsoleted Items”) will be maintained and repaired on a reasonable-efforts basis by Fluidigm while covered by a Service Plan. If Fluidigm determines in its discretion that support, service or maintenance of such Obsoleted Items is no longer reasonable, Fluidigm shall notify Buyer of such determination and such Obsoleted Item shall be deemed Non-Covered Equipment.
7.5 Billable Services. All services performed by Fluidigm or its designee on Buyer’s Non-Covered Equipment or which are not Covered Services shall be billable to Buyer at Fluidigm’s then-current service call fees, including all labor, parts and travel charges.
7.6 Access and Service Safety. Buyer will provide Fluidigm and its designees reasonable and safe access to all Instruments for the provision of any services and for any audit of compliance with Fluidigm’s installation and operational guidelines. Buyer is responsible for proper disposal of all contaminated material and of contaminated parts and subassemblies that, in Fluidigm’s discretion, cannot be safely returned to Fluidigm. Any services that Fluidigm or its designee may provide in connection with the activities contemplated by this paragraph shall be deemed to not be Covered Services, and Buyer shall reimburse Fluidigm at Fluidigm’s then-current service call fees, including all labor, parts and travel charges, for all such work of Fluidigm or its designee.
7.7 Limited Service Warranty. Fluidigm warrants that it will render the Covered Services in a professional and workmanlike manner. As Fluidigm’s sole responsibility and Buyer’s exclusive remedy in the event of any material failure to meet such standard, Fluidigm shall make a commercially reasonable effort to remedy any resulting discrepancies. Any claim based on the foregoing warranty must be submitted in writing in accordance with Fluidigm’s standard procedures within thirty (30) days after delivery or the date of performance of the pertinent services at issue.
7.8 Term and Termination. The term of a Service Plan, if purchased, shall commence, as applicable, on the later of: (i) the date of expiration of the Instrument Warranty Period; (ii) the Service Plan start date specified in the purchase order; or (iii) the date Fluidigm receives an authorized purchase order from Buyer. Such Service Plan will continue for the period specified in the applicable Sales Quote describing the Service Plan or, if no such term is specified, the term shall be one year. Service Plans shall not be automatically renewed. If Buyer wishes to obtain Covered Services for an Instrument beyond the term of the Service Plan or for additional Instruments, Buyer must submit a new order. Fluidigm may terminate a Service Plan immediately by giving written notice of termination to Buyer upon the occurrence of any of the following events: (a) Buyer defaults in the performance of any material requirement or obligation created by the Service Plan or any other agreement between Fluidigm and Buyer; (b) Buyer fails to make any payment to Fluidigm within thirty (30) days of its due date; (c) Buyer ceases doing business; (d) Buyer becomes the subject of any bankruptcy, insolvency, or similar proceeding, becomes insolvent, makes an assignment for the benefit of creditors, is unable to pay its debts when due, has a receiver appointed for a substantial part of Buyer's assets, or an action is taken toward the liquidation or winding up of Buyer’s business; or (e) Buyer suffers a materially adverse change in its financial condition or operations. In addition, either party may terminate a Service Plan by providing written notice thirty (30) days in advance to the other party and Fluidigm will reimburse Buyer on a pro rata basis up to the termination date for any payments made in advance by Buyer, less the implied value of Fluidigm’s time and materials costs and expenses in connection with the provision of services under any such Service Plan. No termination of a Service Plan shall release Buyer from any obligation to pay Fluidigm any amount that has accrued or become payable at or prior to the date of termination.
8. WARRANTY DISCLAIMERS. THE EXPRESS WARRANTIES AND THE REMEDIES SET FORTH IN SECTIONS 6 AND 7.7 ARE IN LIEU OF, AND FLUIDIGM AND ITS LICENSORS, SUPPLIERS AND REPRESENTATIVES HEREBY DISCLAIM, ALL OTHER REMEDIES AND WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT OR SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), IN EACH CASE HOWEVER ARISING, INCLUDING WITHOUT LIMITATION FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLUIDIGM AND ITS LICENSORS, SUPPLIERS AND REPRESENTATIVES SHALL NOT BE LIABLE FOR LOSS OF USE, PROFITS, REVENUE, GOODWILL, BUSINESS OR OTHER FINANCIAL LOSS OR BUSINESS INTERUPTION, OR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES FOR BREACH OF WARRANTY. ANY PRODUCT OR SERVICE PROVIDED WITHOUT A WRITTEN WARRANTY FROM FLUIDIGM IS PROVIDED “AS IS” WITHOUT (AND FLUIDIGM HEREBY DISCLAIMS) ANY WARRANTY, STATUTORY, EXPRESS, IMPLIED OR OTHERWISE. Without limiting the generality of Fluidigm’s general rejection of conflicting terms presented by Buyer, and for clarification purposes only, Buyer agrees that any different or additional warranty terms stated in Buyer’s Terms (if applicable) shall be void and of no effect.
9. LIMITATION OF LIABILITY. FLUIDIGM’S, AND ITS LICENSORS’, SUPPLIERS’ AND REPRESENTATIVES’, LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE SALE OF PRODUCTS OR PROVISION OF SERVICES SHALL BE LIMITED TO THE AMOUNT PAID BY THE BUYER FOR THE PRODUCTS AND/OR SERVICES TO FLUIDIGM IN THE PRIOR TWELVE (12) MONTHS. IN NO EVENT SHALL FLUIDIGM BE LIABLE FOR COSTS OF LOSS OF USE, PROFITS, REVENUE, GOODWILL, ANY COSTS ASSOCIATED WITH RETESTING, BUSINESS OR OTHER FINANCIAL LOSS OR BUSINESS INTERUPTION, OR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, WARRANTY, PURSUANT TO ANY STATUTE, OR ON ANY OTHER BASIS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE SALE OF PRODUCTS OR SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT FLUIDIGM IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Nothing in this Agreement shall operate so as to exclude or limit the liability of Fluidigm, its licensors, suppliers or representatives for any liability which cannot be excluded or limited by law.
10. INDEMNITY AND INSURANCE
10.1 Indemnification of Buyer. Subject to Sections 10.2 and 10.3 below, Fluidigm agrees to defend Buyer against any third party claim, proceeding or action (“Claim”) to the extent the Claim alleges that any Product sold to Buyer hereunder, as delivered to Buyer by Fluidigm, directly infringes or misappropriates, as applicable, any patent, copyright, or other intellectual property right. Fluidigm will pay all damages awarded in a final non-appealable judgment, and settlements approved in writing by an authorized representative of Fluidigm, in connection therewith, provided that (i) Buyer provides to Fluidigm written notice of the Claim within thirty (30) days of receipt by Buyer of such Claim, or such earlier time as required to avoid prejudice to Fluidigm or its ability to defend such Claim, (ii) Buyer allows Fluidigm to control the defense and settlement of the Claim, and (iii) Buyer provides to Fluidigm reasonable assistance in connection therewith, at no charge to Fluidigm. Buyer may employ counsel at its own expense to assist it with respect to any such Claim, provided that this shall not obligate Fluidigm or its counsel to consult with or advise such Buyer counsel, nor affect Fluidigm’s control of the defense and settlement of the Claim.
10.2 Exceptions. Fluidigm shall have no liability or obligation pursuant to this Section 10 with respect to Claims resulting from (i) modification of the Product other than by Fluidigm or its authorized service provider, (ii) combination of the Product with any item or method not supplied or specifically recommended in writing by Fluidigm, (iii) use of the Product other than in accordance with the Documentation and this Agreement (including, without limitation, use for diagnostic or other non-research uses), or (iv) compliance with Buyer's instructions, specifications or design to the extent such instructions, specifications or design materially differ from comparable Products that Fluidigm makes generally available to its customers (collectively, (i)-(iv), “Excluded Causes”).
10.3 Remedy. In the event there is a Claim, or Fluidigm believes a Claim is likely, alleging intellectual property infringement or misappropriation, as applicable, with respect to any Product sold to Buyer hereunder, Fluidigm shall be entitled, without obligation to do so, at its option and expense, to (i) modify the Product so that it is no longer infringing, (ii) obtain a license with respect to the applicable intellectual property rights, or (iii) accept the return of each such Product purchased by Buyer hereunder (except for contaminated Products that, in Fluidigm’s discretion, cannot be safely returned to Fluidigm) and in Buyer’s possession and control, and provide to Buyer a refund of the price paid by Buyer to Fluidigm therefor, subject to reasonable deductions for damage and amortized on a straight line basis over three (3) years from the date of original delivery to Buyer. Fluidigm will have no liability or obligation with respect to any alleged infringement occurring after the date Fluidigm makes any such remedy available to Buyer.
10.4 Exclusive Obligation. Notwithstanding any other provision, the foregoing Sections 10.1-10.3 state Fluidigm’s sole liability and obligation, and Buyer's exclusive remedy, arising out of any actual or alleged intellectual property infringement or misappropriation of any kind, as applicable, or any actual or alleged breach of any representation or warranty (statutory, express or implied) that the Products or Services do not infringe or misappropriate, as applicable, any third party intellectual property anywhere in the world.
10.5 Indemnification of Fluidigm. Buyer agrees to defend Fluidigm against any Claim (i) to the extent the Claim alleges infringement or misappropriation, as applicable, of any patent, copyright, or other intellectual property right as a result of any Excluded Cause, or (ii) that arises in connection with Buyer’s use of Products (a) for any clinical purpose or application, (b) in violation of any applicable law or regulation, or (c) in the provision of services under any ‘fee for service’ agreement or other arrangement. Buyer will pay all damages awarded, and all settlements approved by Buyer, in connection therewith, provided that (x) Fluidigm provides to Buyer written notice of the Claim within thirty (30) days of receipt by Fluidigm of such Claim, or such earlier time as required to avoid prejudice to Buyer or its ability to defend such Claim, (y) Fluidigm allows Buyer to control the defense and settlement of the Claim, and (z) Fluidigm provides to Buyer reasonable assistance in connection therewith, at no charge to Buyer. Fluidigm may employ counsel at its own expense to assist it with respect to any such Claim, provided that this shall not obligate Buyer or its counsel to consult with or advise such Fluidigm counsel, nor affect Buyer’s control of the defense and settlement of the Claim. If Buyer is a U.S. state, city, town or other municipality, or a public university, college or other not-for-profit institution chartered under the laws of a U.S. state, this section shall only apply to the extent permitted by applicable law. This section shall not apply if Buyer is an agency of the U.S. Government; in such case, Buyer’s liability shall be limited by the Federal Tort Claims Act, 28 USC 2671, et seq.
11. INTELLECTUAL PROPERTY. Except to the extent prohibited by applicable law, Fluidigm shall retain all ownership of its intellectual property rights with respect to the Products. All rights, title and interest, including, without limitation, all intellectual property rights in and to all Software and all documentation for such software, including on-line read-me or help files (collectively “Software Documentation”). The content of all training provided by Fluidigm representatives on Products is and shall remain the property of Fluidigm, its licensors and suppliers. All Software and related Software Documentation and training provided by Fluidigm are protected by copyright under 17 U.S.C. § 101 et seq. and other intellectual property rights, and their international equivalents and by international treaties. Buyer agrees not to reproduce training sessions in whole or in part.
12.1 Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by first class mail (registered or certified if available; air mail if overseas), postage prepaid, or otherwise delivered by hand, commercial courier service, messenger or transmitted electronically by telecopy (fax) or e-mail PDF (with a copy to Legal@Fluidigm.com for any notice or communication in connection with a Claim or a Dispute), addressed to the addresses listed in the Sales Quote (or to Buyer’s address listed in its purchase order) or at such other address furnished with a notice in the manner set forth herein. Such notices shall be deemed to have been effective when delivered or, if delivery is not accomplished by reason of some fault or refusal of the addressee, when tendered (which tender, in the case of mail, shall be deemed to have occurred upon posting, and in the case of telecopy (fax), shall be deemed to have occurred upon transmission). All notices shall be in English.
12.2 Governing Law and Venue. This Agreement and any disputes arising out of or relating to this Agreement (including its formation or termination) or Fluidigm’s goods, software or related services (collectively, “Disputes”) shall be governed by and interpreted in accordance with the laws of the State of California, U.S.A., (provided, however, that if Buyer is a U.S. state, city, town or other municipality, or a public university, college or other not-for-profit institution chartered under the laws of a U.S. state, the law of such state shall govern), excluding in all cases choice of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. Unless Buyer is a U.S. state, city, town or other municipality, or a public university, college or other not-for-profit institution chartered under the laws of a U.S. state, in which case the law of such state regarding Disputes shall govern, Fluidigm and Buyer agree that any dispute or controversy arising out of or in connection with this Agreement shall be finally settled by binding arbitration under the extant rules of the International Centre for Dispute Resolution, by one (1) arbitrator appointed in accordance with such rules. For sales originating in Asia, the venue of any such arbitration shall be Singapore; for sales originating in Europe, the venue of any such arbitration shall be London, England; and for sales originating in all other regions, the venue of arbitration shall be San Francisco, California. The arbitration shall be conducted in English, and any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or a true copy thereof. The decision and/or award rendered by the arbitrator shall be written, final and non-appealable, and the parties agree that the decision and/or award of the arbitrator shall be the sole, exclusive and binding remedy between them regarding any and all disputes, controversies, claims and counterclaims properly before the arbitrator. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award, punitive or exemplary damages against any party. The costs of any arbitration, including administrative fees and fees of the arbitrator, shall be shared equally by the parties, and each party shall bear the cost of its own attorneys' and expert fees, provided that the arbitrator may at his or her discretion award to the prevailing party the costs and expenses incurred by the prevailing party in connection with the arbitration proceeding. The decision and/or award of the arbitrator may be entered in any court of competent jurisdiction for a judicial recognition of the decision and applicable orders of enforcement (which may include, without limitation, permanent injunctive relief or orders for specific performance or for equitable relief), and either party may apply to any court of competent jurisdiction for appropriate restraining orders or temporary injunctive relief pending resolution of any arbitration proceeding. For avoidance of doubt, any such equitable remedies shall be cumulative and not exclusive and are in addition to any other remedies which either party may have under this Agreement or applicable law.
12.3 Purchases for the U.S. Government. If Buyer is placing an Order for the United States Government or in support of a contract with the U.S. Government, Buyer agrees that the Products purchased are “commercial items” as defined in the U.S. Federal Acquisition Regulations (“FAR”). If Buyer is placing this Order in the name of the U.S. Government and the Order is less than or equal to $3,000, then Buyer agrees that only these Terms shall apply to the Order. If the Order is greater than $3,000, then Buyer agrees that the Order is subject to FAR Part 12, and pursuant to FAR 12.301 and 12.302, only those mandatory provisions of FAR 52.212-1, 52.212-3, 52.212-4 and 52.212-5, and these Terms, shall apply. If Buyer is placing this Order in support of a contract with the U.S. Government, Buyer agrees that only those mandatory clauses listed in FAR 52.244-6 as well as these Terms shall apply to the Order. All other terms and conditions are expressly rejected. In the event of a conflict between the FAR provisions referenced herein and these Terms, these Terms shall take precedence to the maximum extent permitted by applicable law.
12.4 U.S. Government End Users. The Software and Documentation provided by Fluidigm pursuant to this Agreement are “commercial items,” as the term is defined at 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the commercial computer software and commercial computer software documentation are licensed to United States Government end users (i) only as commercial items and (ii) with only those rights granted pursuant to the terms of this Agreement.
12.5 Export Controls. Buyer agrees that it will not export or transfer any Product(s) for re-export in violation of any United States laws or the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of such laws.
12.6 Modifications. This Agreement and any Addendum may only be amended or supplemented upon the mutual written agreement of both parties.
12.7 Waivers. The waiver by either party of a term or provision of this Agreement or of any Addendum, or of the other party’s breach of this Agreement or of any Addendum, shall not be effective unless such waiver is in writing and signed by such party. No waiver by a party of a breach by the other party of this Agreement or of any Addendum shall constitute a waiver of any other or subsequent breach by the other party.
12.8 Severability. If any section, paragraph, provision or clause or any portion thereof in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, the remainder of this Agreement shall be valid and enforceable and the parties shall negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into this Agreement.
12.9 Force Majeure. Except for the payment of money, neither party shall be liable to the other party for any failure or delay in the performance of any of its obligations under this Agreement for the period and to the extent such failure or delay is caused by civil unrest, threat of or actual acts of terrorism or war, embargoes, governmental actions, acts of God, earthquakes, floods, storms, fires, supplier delay, accidents, explosions, epidemics, quarantine restrictions, or other such contingencies beyond the reasonable control of the applicable party (“Force Majeure”). The party affected shall notify the other party as soon as practicable of any anticipated delay due to Force Majeure.
12.10 No Third Party Beneficiaries. This Agreement has been made and is made solely for the benefit of Fluidigm and Buyer and their respective permitted Subsidiaries, successors and assigns. Nothing in this Agreement is intended to (i) confer any rights or remedies under or by reason of this Agreement on any persons or entity other than the parties to this Agreement and their respective permitted successors and assigns; or (ii) relieve or discharge the obligation or liability of any third persons or entities to any party to this Agreement.
12.11 General. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The English language shall govern the meaning and interpretation of this Agreement. This Agreement (including without limitation all exhibits hereto and all attachments thereto, which are incorporated herein by this reference as though fully set forth in the body of this Agreement) embodies the final and complete understanding of the parties with respect to the subject matter hereof, superseding all prior oral or written communications. Neither party has entered into this Agreement in reliance on any statement or representation not expressly set out herein. No oral explanation or oral information by either party shall alter the meaning or interpretation of this Agreement.
12.12 Publicity. Neither party will issue any press releases concerning this Agreement or any Addendum or the relationship between the parties without the prior written consent of the other party.
12.13 Authority. The individual accepting this Agreement or the applicable Sales Quote on behalf of Buyer represents and warrants that he/she is authorized and empowered to bind Buyer to all of the terms and conditions set forth in this Agreement and all applicable Addenda.
12.14 No Conflicting Funding. Buyer represents and warrants that its use of any and all Products is not governed by any funding, grant or other terms or conditions, whether from the United States federal government or any other institution, which would prevent Buyer from complying with all of the terms and conditions of this Agreement and of each Addendum.
12.15 Independent Contractors. Buyer’s relationship with Fluidigm is that of an independent contractor, and nothing in this Agreement or in any Addendum is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship.
12.16 Assignment. Buyer shall not assign, by operation of law or otherwise, this Agreement or any Addendum, or any of its rights, or delegate any of its obligations under this Agreement or any Addendum, to any third party without the prior express written consent of Fluidigm. An “assignment” shall include any assignment or change of control in connection with any sale of all or substantially all of Buyer’s assets, any merger or acquisition of Buyer, or any event whereby the holders of the majority of Buyer’s voting equity immediately before such event will hold less than a majority of Buyer’s voting equity immediately after such event, whether any of the foregoing occurs in a single transaction or a series of transactions. Any attempted assignment in violation of this section shall be void.
12.17 Equitable Relief. A breach by Buyer of this Agreement or of any Addendum related to any Product or of confidentiality will cause irreparable damage to Fluidigm for which money damages is not an adequate remedy, and Fluidigm shall be entitled to obtain equitable relief, in any court or forum notwithstanding Section 12.2, including, but not limited to, seeking injunctive relief, as well as monetary damages and any other appropriate relief, without obligation to post bond.