HomeMy WebLinkAboutBiomerieux-Service Agreement_D-25-448.pdf D-25-448
SERVICErB1 0 M It R I E 7UX
AGREEMENT
This Service Agreement ("Agreement') is effective as of the date of the last signature below ("Effective Date") by and
between bioMerieux, Inc., a Missouri corporation located at 515 Colorow Drive, Salt Lake City, Utah 84108
("bioMerieux") and Fresno County Health Department, a California entity, located at 4525 E Hamilton Ave, Fresno,
California, 93711 ("Customer"), each a'Party"and collectively the "Parties."
1. Service Covered. This Agreement provides service for the applicable Instruments set forth in the attached Exhibit A
("Sales Quote"). Customer agrees to purchase the service in accordance with the terms and conditions herein.
2. Term. This Agreement becomes effective as of the date of the last signature below and shall continue for the time
period listed in the Sales Quote ("Term").
3. Integration and Construction. Regardless of whether attached as exhibits, the following are expressly incorporated
into and made a part of this Agreement by reference: (a) the applicable service Terms and Conditions available at
https://www.biomerieux-usa.com/biomerieux-terms-conditions ("Terms") and (b) the Sales Quote. By placing an
order, Customer expressly agrees to the Terms of this Agreement.All other terms are excluded whether proposed by
Customer or bioMerieux. If there is an inconsistency between any provision of any other document and this
Agreement, the relationship of the Parties shall be governed by this Agreement. This Agreement constitutes the
entire agreement of the Parties as to this transaction.
4. Electronic Signature. This Agreement may be executed and exchanged electronically and will have the same effect
as physical delivery of the paper document bearing original signatures.
WE HAVE READ AND AGREE TO THE ABOVE.
BIOMERIEUX, INC. FRESNO COUNTY GENERAL SERVICES DEPARTMENT-
PURCHASING
Signed by:
By: s c� � n By:
Name: aniel J Hermann Name:Riley Blackburn
Title: Sr. Director, NPS Title: Purchasing Manager
Date:28-Aug-25 Date: 6-20-2025
V3
EXHIBIT A
QUOTE: Q-94952
QUOTE EXPIRATION DATE: 08/29/2025
PREPARED FOR
Fresno County Health Department
Customer Number: 0001019325
4525 E Hamilton Ave
Fresno California 93711 United States
CONTACT
BIOMERIEUX SALES REPRESENTATIVE
Brad LAMOUREUX
brad.lamoureux@biomerieux.com
+13853928274
PIONEERING DIAGNOSTICS
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SERVICES
FULL SERVICE AGREEMENT MYLA PC
Functional Location:542106
Assets Serial Numbers:SW-VM001790,MXL3273904
Start Date:04/05/2025
End Date :04/04/2026
COVERAGEPACKAGE
DESCRIPTIONREFERENCE • QUANTITY • •
4705876 FULL SERVICE 12 1 $3.792.00 $3,792.00 $3,792.00
AGREEMENT MYLA PC
L2-MAINT CONTRACT MYLA PC INCLUDED
HOTLINE 24/7 INCLUDED
ON-SITE REPAIR 7/7 LOCAL
BUSINESS HRS INCLUDED
TOTAL $3,792.00
FULL SERVICE AGREEMENT VITEK MS PRIME
Functional Location:542114
Assets Serial Numbers:MXL2082SZG ES00869
Start Date:04/11/2025
End Date :04/10/2026
PACKAGE •
DESCRIPTION • QUANTITY • •
REFERENCEFULL SERVICE
4707149 AGREEMENT VITEK MS 12 1 $30,228.00 $30,228.00 $30,228.00
PRIME
L2-MAINT.CONTRACT INCLUDED
VITEK MS PRIME
HOTLINE 24/7 INCLUDED
ON-SITE REPAIR 7/7 LOCAL
BUSINESS HRS INCLUDED
TOTAL $30,228.00
Agreement Total : $34,020.00
This quote (including any purchase order issued by Customer in response to this quote) is governed by the attached
Agreement, bioMerieux's General Sales Terms and Conditions, and the applicable warranty and/or service terms
available at https://www.biomerieux-usa.com/biomerieux-terms-conditions
Preventive Maintenance: All Instruments with Full Service coverage (except MYLA) receive 1 Preventative Maintenance
visit ("PM") per year, except for the following Instruments, which receive 2 PM's per year: VITEK 2 (120 or above),
EASYMAG, and VITEK REVEAL. MYLA does not require a PM.
Billing will be annual in advance unless otherwise mutually agreed at the time that the Purchase Order is submitted.
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BrIOMtRIEUX
BIOMERIEUX TERMS AND CONDITIONS
These terms and conditions(the"Terms")govern all transactions involving Products between the Parties.Unless agreed to otherwise by the Parties,the Terms take
priority over any conflicting terms in another document.By placing an order related to a Sales Quote,Customer agrees to these Terms.All additional or different
terms proposed by Customer are rejected,and null and void.
1.Definitions
"Agreement"means these Terms,the Sales Quote,and any document signed by the Parties referencing these Terms and a Sales Quote.
"Consumables"means those reagents,panels,or bottles which are identified in the Sales Quote or which are otherwise ordered by Customer.
"Customer"means the entity or person(s)listed on the Sales Quote or the original lease or purchaser of the Product.
"Instrument"means the equipment identified in the Sales Quote or otherwise ordered by Customer.
"Kit"or"Box"refers to a package containing all the necessary Consumables and materials.
"Parties"means Seller and Customer.
"Permitted Uses"means the field of use and/or application of the Products(or specific Products or classes of Products)by end-users,as specified on Product labels
or inserts affixed to or accompanying the Products,subject to any restrictions or limitations on usage set forth therein.
"Products" means Consumables, Instruments, Seller Software, or other items in the Sales Quote, including Services not covered under a separate services
agreement.
"Sales Quote"means the bioMerieux quote provided to the Customer and made a part of the Agreement between the Parties which identifies the Products.
"Seller"means bioM6rieux,Inc.,including its affiliated companies.
"Seller Software"means computer software, machine readable instructions or instruction sets developed by Seller and delivered with or installed, loaded,
integrated, embedded,bundled,incorporated,or read into memory on any Instrument.
"Services"shall mean the maintenance or repair services described in the Sales Quote.
"Third Party Licenses"means the rights or licenses of Customer under contractual agreements between Customer and one or more third parties.
"Warranty"means the warranty described herein in Section 12.
Defined terms in the singular shall include reference to the plural and vice versa.
2. Orders
By placing an order,Customer agrees to these Terms.Seller reserves the right to reject any Sales Quote prior to execution,or any order for Product(the"Order"),
for any reason.Seller's acceptance of a Sales Quote or an Order is established by the earlier of(a)Seller delivering written acknowledgement of acceptance to
Customer,or(b) Seller delivering Products to the Delivery Point as set forth in Section 4,whichever occurs first.Any Customer purchase order documentation
accepted or signed by Seller is solely for Customer's record keeping and shall not,notwithstanding the terms thereof,add to,modify,amend,supersede,or replace
this Agreement in whole or in part. Customer may withdraw an Order or Sales Quote at any time before it is accepted by Seller;provided,however,that any order
placed for Consumables will,subject to Section 12("Limited Warranty"),be non-cancellable and non-refundable.
3. Termination
Either party may terminate this Agreement at any time upon the insolvency of the other Party or in the event of the institution of any proceeding by or against the
other party in bankruptcy or insolvency or under the provisions of the Bankruptcy Act or for the appointment of a receiver or trustee or any assignment for the benefit
of creditors of the other party.Seller may terminate this Agreement or any Sales Quote(i)for breach of the Agreement by Customer which is not cured within thirty
(30)days following receipt of notice thereof,or(ii)as otherwise provided by the Terms.Without limitation,a breach of this Agreement includes but is not limited to,
failing to make timely payments,failing to purchase any minimum Consumable commitment,or failing to perform any Customer obligation under this Agreement.
Upon the occurrence of a default,Seller may(a)terminate the Agreement;(b)adjust the pricing available to Customer under the Agreement;and/or(c)accelerate,
and declare as immediately due and payable,the outstanding balance of all payments due under the Agreement. The exercise of the foregoing remedies shall be
without limitation to remedies available at law,in equity or under this Agreement as applicable,and Seller shall have the right to recover all reasonable and proximate
damages suffered by reason of such default, including reasonable attorneys'fees. Upon termination of this Agreement, Customer shall return any Seller owned
Instrument to Seller unless otherwise agreed in the Sales Quote.
4. Shipping
Unless Customer requests that Products be shipped under its own account, Seller will deliver the Products to a common carrier for shipping, based upon Seller's
packaging, shipping, and insurance practices,to the address designated by Customer("Delivery Point"). Seller ships all Products FOB Origin for delivery in the
United States and FCA Origin(INCOTERMS 2012)for delivery outside of the United States. Customer will bear all freight,insurance,and other shipping costs to
Delivery Point. Seller may ship in one or more lots,in which case each lot will be deemed a separate sale. Seller will not be liable for any failure or delay in shipping.
Seller reserves the right to ship Products freight collect and Seller shall exercise its own discretion with respect to the manner of shipment,packaging,and carrier.
Customer shall be responsible for obtaining all necessary import or export licenses or permits for the Product(s). Seller will have the right, in its judgment, to
apportion Products among its customers in such manner as Seller deems equitable.
Risk of loss or damage passes to Customer when Products are delivered to a carrier,at which point,Customer is responsible for all loss or damage to the Products.
No loss or damage will relieve Customer from its payment obligations under this Agreement. Seller's warranty coverage also begins when Products are delivered to
a carrier. In the event of loss or damage during shipping,Customer may make a warranty claim to Seller. After a warranty claim for loss or damage during shipping,
any proceeds from insurance on the Products will be paid to Seller.
5. Acceptance and Use of Products
Acceptance of any Instruments requiring installation by Seller shall occur upon the earlier of(i)delivery of proof of installation by Seller to Customer,or(ii)use of
the Instrument by Customer for clinical testing, in neither case to exceed thirty(30)days following installation.Acceptance of any Instruments that do not require
installation by Seller shall be deemed accepted five(5)calendar days after delivery. Customer agrees to comply with all applicable laws and regulations when
using,maintaining,or disposing of the Products.Customer acknowledges that Consumables and Instruments are specifically designed and manufactured to operate
together.Customer agrees that it will only use Consumables with Instruments.Customer will store Consumables in accordance with Seller's storage and handling
instructions (or, absent such instructions, in accordance with generally accepted industry customs and standards), including all temperature and climate control
standards and other regulatory requirements.
PIONEERING DIAGNOSTICS
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Instruments may be returned for full credit within five(5)calendar days of delivery,provided that Customer has not damaged the Instruments.Consumables may
not be returned except in the event that Customer has a warranty claim.To make a claim for defective or damaged Products,Customer must notify Seller in writing
within the applicable warranty period and if applicable,return Products to Seller using a valid return authorization number(RMA).Seller may refuse any Product not
timely rejected or returned without a valid RMA. For any valid claim made, Seller may elect to repair or to replace the Product with a comparable Product or to
refund the purchase price of the Product.These are Customer's sole and exclusive remedies for defective,damaged,or missing Product(s).
6. Price
Customer will pay for Products no later than thirty(30)days after the date of Seller's invoice,which will include all applicable taxes and shipping costs.If Customer
is tax- exempt,Customer will provide Seller with certification of its status.Payments are deemed made by Customer when received by Seller.Interest will accrue on
any undisputed, unpaid balances due to Seller at a rate of 1.5%per month(or the maximum legal interest rate allowed by applicable law,if less)from and after the
due date.New customer Orders and Sales Quotes are subject to credit approval.Seller reserves the right to require other payment terms,including without limitation,
payment in advance and/or letters of credit.Unless approved in writing in advance by Seller,invoices shall be paid by cash,check,or ACH.Seller reserves the right
to reject or accept credit card payments on a case by case basis.Customer is not entitled to abate or reduce payments,or to withhold,discount,or offset any amounts
or charges against the amounts due to Seller under this Agreement for any reason.
7. Software
Any code or software incorporated into the Product which is not Seller Software("Third Party Software"), is provided to Customer"as-is"or subject to the terms, if
any,set forth in any"shrink-wrapped"license packed with the Products or"click-wrapped"license visually displayed upon installation or execution of the Software,
or any other terms and conditions of use by the owner,developer,or manufacturer(the"End-User License Agreement").Customer hereby agrees to use the Third
Party Software in accordance with the terms and conditions of the applicable End-User License Agreement. Nothing in this Agreement is intended or shall be
interpreted to grant to Customer any ownership of or title to the any Seller Software or Third Party Software(as used together"Software")and Customer shall not
be permitted to use the source code of the Software.SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, NOR SHALL
SELLER HAVE ANY LIABILITY WITH RESPECT TO,ANY THIRD PARTY SOFTWARE OR THIRD PARTY LICENSES,AS DEFINED IN SECTION 1.
Upon acceptance of the Product,Customer accepts full responsibility to manage and maintain:(i)all critical operating system patches to minimize risk of exposure
of the Product to cyber threats;and(ii)the latest Software Updates,upon being provided with same by Seller or applicable third party.
Customer will take all necessary measures to ensure technological and physical security of any Consumables, Instruments,and all Software. Seller shall not be
responsible for any contamination of Instruments or Software by any virus and reserves the right to charge Customer for any measures taken by Seller to remedy
such contamination.
8. Remote Services
Where applicable,Seller hereby grants Customer non-exclusive,non-transferable,and limited access to VILINK®("VILINK")to assist with the following:
A.Instrument Support.Seller may remotely access the Instrument to(i)investigate,troubleshoot,diagnose,or resolve Instrument errors or performance issues and
(ii)provide training and assistance to Customer.Each VILINK remote access session can only be initiated upon Customer's express authorization.
B.Operational Data Management. Seller may collect technical, operational, and other non-personal data related to the use or performance of the Instrument to
monitor performance and for other related analytical,statistical,or benchmarking purposes.Seller may use such non-personal data for(i)improving and enhancing
Products or Services,(ii)research and development related to new products,features,or services,and(iii)other internal business and operational purposes.
C.Software Update Delivery. Seller may deliver patches, modifications, enhancements, corrections, and/or security improvements to the Software ("Software
Updates"). Seller's obligation under this Section is limited to the remote delivery of the Software Updates to the Instrument. Customer shall be responsible to
install the Software Updates on the Instrument.
D.Fees.Customer acknowledges failing to implement VILINK may,at Seller's discretion,result in up to a 20%increase in Service or Extended Warranty costs.For
VITEK MS PRIME,additional fees shall apply.Furthermore,if a service dispatch is required that could have otherwise been avoided with the implementation of
VILINK,bioMerieux reserves the right to charge a dispatch fee based on its prevailing rates.
9. Indemnification
Seller will indemnify, defend, and hold harmless Customer from and against third party claims, demands, causes of action, or liability arising from a claim that
Customer's use or possession of the Products infringes or misappropriates the patent,copyright,trade secret,or other intellectual property right of any third party
except to the extent such claim arises in whole or in part from(i)the combination,operation,or use of the Product with products,services,deliverables,materials,
technologies,business methods,or processes not furnished by Seller;(ii)modifications which were not made or approved by Seller;(iii)Customer's breach of this
Agreement or use of the Product other than in accordance with its Permitted Uses; or(iv)Third Party Software or Third Party Licenses.Sellers indemnification
obligation hereunder is contingent upon prompt notice of and full control over the defense of any claim.Unless prohibited by law,Customer will indemnify,defend,
and hold Seller harmless from and against any claim, demands,causes of action,or liability asserted by any third party and arising from or related to(a)the use,
possession,or operation of the Products inconsistent with their Permitted Uses, (b)the conduct by Customer of its business and operations,or(c)any breach of
any covenant or any representation or warranty made by Customer in this Agreement.
10. Limitation of Liability
A.General Limitation. NOTWITHSTANDING ANYTHING IN THE TERMS, CUSTOMER DOCUMENTATION, SALES QUOTE, MASTER AGREEMENT OR ANY
ANCILLARY AGREEMENT(COLLECTIVELY THE "DOCUMENTS")TO THE CONTRARY,BIOMERIEUX'S CUMULATIVE LIABILITY TO CUSTOMER,OR ITS
EMPLOYEES,AGENTS,CUSTOMERS,OR INVITEES,OR ANY THIRD PARTIES, IN CONTRACT,TORT(INCLUDING NEGLIGENCE),INDEMNITY,OR ANY
OTHER LEGAL OR EQUITABLE THEORY,ARISING OUT OF OR RELATED TO,WITHOUT LIMITATION,THE DOCUMENTS,PRODUCTS,OR PRODUCT
PERFORMANCE(EXCEPT AS EXPRESSLY STATED IN SECTION 12)SHALL BE EXPRESSLY LIMITED TO THE PURCHASE PRICE PAID BY CUSTOMER
IN CONNECTION WITH THE SPECIFIC PRODUCT(S)WHICH ARE THE PROXIMATE CAUSE OF ANY SUCH LIABILITY.
B.Indirect, Special, and Consequential Damages. NOTWITHSTANDING ANYTHING IN THE DOCUMENTS TO THE CONTRARY, SELLER SHALL NOT BE
LIABLE TO CUSTOMER,OR ITS EMPLOYEES,AGENTS,CUSTOMERS,OR INVITEES,OR ANY THIRD PARTIES,IN ANY INSTANCE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF GOODWILL OR OPPORTUNITY, OR ANY LOST PROFITS,
LOSS OF ANY DATA OR USE,EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY MADE HEREIN.
C.Exceptions to Limitations.The limitations set forth in this section shall not apply with respect to:(i)injury to person and/or tangible property arising from the willful
misconduct or gross negligence of Seller; (ii)fraud or(iii)to the extent such disclaimer is prohibited under applicable law.Customer acknowledges and agrees
Seller has entered into this Agreement in reliance upon the disclaimers of warranties and limitations of liability in the Terms and that the same form an essential
basis of the bargain between the parties.
bioMerieux Confidential! •- ::.'.''... PIONEERING DIAGNOSTICS
D.NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN,SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS, EXPENSES,OR OTHER
LIABILITIES RELATED TO CUSTOMER'S USE OF THE PRODUCTS OUTSIDE ITS PERMITTED USES.
11. Export Controls
The Products,including hardware,software,services,and any related technology,provided to the Customer may be subject to applicable export control laws and
regulations including,without limitation,the United States Export regulations.Customer agrees that Products will not be used,in their entirety or in part,directly or
indirectly in support of activities,sectors and destinations restricted or prohibited by the United States, the European Union,or any other applicable jurisdiction,
except as authorized under applicable laws and regulations.Products will only be used for clinical military use when authorized under applicable laws and regulations
and with prior authorization of Seller. Products will not be used in activities relating to biological,chemical,or nuclear weapons or applications.Customer agrees
that Products will not be used directly or indirectly,sold,re-exported or incorporated into products for the direct or indirect benefit of any person or entity named on
any applicable government's denied or restricted party list.
12. Limited Warranty and Service
A.Seller warrants the BioFire FilmArray Products in accordance with the following applicable warranties:
i. BioFire Products and associated Consumables see Sellers Standard Limited Warranty available at https://www.biomerieux.com/contenUdam/biomedeux-
com/03—our-offer/cli ni cal/i n-hospital—in-lab/prod ucts/biofi re-fil marray/documents/Sta ndard-Lim ited-Wa rra nty-for-B ioFire-Products-and-Associated-
Consumables.pdf.
ii. BioFire Products and associated Consumables see Seller's Extended Warranty (if purchased) available at
https://www.biomerieux.com/contenUdam/biomerieux-com/03—our-offer/clinical/in-hospital--in-lab/products/biofire-filmarrav/documents/Extended-
Warranty-for-BioFire-Products-and-Associated-Cons um ables.pdf.
B.Seller warrants all other non BioFire products and associated Consumables in accordance with the following applicable warranties:
i. Instruments. Seller warrants the Instruments to the Customer for a period of one(1)year after Products are delivered to a carrier/shipper for delivery to
Customer(the "Warranty Period")against defects in material and workmanship and failures to conform to Seller's specifications applicable on the date of
shipment.Customer's sole and exclusive remedy for a breach of the above warranty is for Seller to either,at Seller's sole discretion,repair or replace,any
defect confirmed by Seller to have occurred,under normal use and service,during the Warranty Period provided Seller is promptly notified in writing upon
discovery of such defect.
ii. Consumables. Seller warrants that Consumables will conform with the specifications set forth in the applicable Product insert. Customer shall promptly
notify Seller of any Consumables which are found to be in breach of the above warranty.Upon verification by Seller,Customers sole and exclusive remedy
for said non-conforming Consumables shall be for Seller to either replace or, alternatively, in Seller's sole discretion, issue a credit note equal to the
purchase value of the defective Consumables.
iii. Services. Seller warrants that the Services to be performed hereunder shall conform to Seller's standards and that the parts supplied hereunder are
warranted against defects in workmanship and material for a period of thirty (30) days from the date of installation of such part. Customer's sole and
exclusive remedy for breach of the above warranty shall be for Seller to provide Customer with a repair or replacement for the part which is found to be
defective due to a breach of the above warranty.
iv. Upon notification,Seller will provide the following: (i)make commercially reasonable efforts to provide on-site engineering support within forty eight(48)
hours of determination by Seller that an on-site visit is necessary, Monday-Friday, 8:OOAM-5:OOPM local time in the Continental U.S.,excluding locally
observed holidays; and (ii)remote applications and engineering support Monday-Friday, 8:OOAM-5:OOPM local time in the Continental U.S., excluding
locally observed holidays (hereinafter the"Warranty Period Services").In no event shall these Warranty Period Services include preventative maintenance
service. Disposables and replacement items with a normal life expectancy of less than one(1)year such as batteries,lamps, bulbs,and card trays are
excluded from this warranty.Seller shall not be liable under this warranty for any defect arising from abuse of the Instrument;failure to operate and maintain
the Instrument in accordance with any Seller instruction or instruction manual; operation of the Instrument by a person who has not been trained in its
operations by Seller's recommendations; or repair service,alteration, or modification of the Instrument by any person other than the authorized service
representative of Seller.
V. If Customer purchases a Service Agreement,said Services shall be governed by the additional Service Agreement Addendum available at
https://www.biom a ri a ux.com/content/dam/biomerieux-com/03--our-offer/clinical/in-hospital--i n-I a b/prod ucts/biofi re-filmarrav/documents/CI i n i cal-Service-
Addendum-2025.pdf.
The Warranty is personal to the Customer and may not be transferred in whole or in part to any third party,including an affiliate of Customer.Only the Customer as
defined in these Terms may enforce the Warranty.The Warranty is facility specific and does not transfer if the Product is moved to another facility unless Seller
conducts such move. Any description of the Products contained on Seller's website or promotional materials is for the sole purpose of identifying them,and any
such description is not a part of the basis of the bargain and does not constitute a warranty that a Product shall conform to that description.No affirmation of fact or
promise made by Seller,on its website or otherwise,shall constitute a warranty that the Products will conform to the affirmation or promise.Customer acknowledges
and agrees Customer has not relied on any other statement,promise,representation,or warranty made by or on behalf of Seller which is not expressly set forth in
the Terms.
THE WARRANTIES AND REMEDIES SET FORTH AND INCORPORATED BY REFERENCE IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OHER
WARRANTIES AND REMEDIES OF ANY NATURE WHATSOEVER.TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW,SELLER MAKES
NO FURTHER, AND HEREBY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES WHATSOEVER, EXPRESS OR IMPLIED,
STATUTORY, OR OTHERWISE REGARDING THE SUBJECT MATTER OF THIS AGREEMENT,ANY PRODUCT, REAGENT, INSTRUMENT, SOFTWARE,
THIRD PARTY LICENSES,OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT,INCLUDING WITHOUT LIMITATION,ANY REPRESENTATION OR
WARRANTY WITH RESPECT TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INTERFERENCE,LACK OF INFRINGEMENT OF
THE RIGHTS OF THIRD PARTIES,OR WHICH MAY ARISE FROM COURSE OF DEALING OR USAGE OF TRADE,OR REGARDING THE COMPATIBILITY
OR INTEROPERABILITY OF THE PRODUCT, INSTRUMENT, OR SOFTWARE WITH OTHER PERSONAL OR THIRD PARTY EQUIPMENT, LICENSES,
DEVICES,PROPERTY,OR ACCESSORIES WHICH CUSTOMER USES WITH OR CONNECTS TO THE PRODUCTS.
13. Additional Obligations of Customer
Customer agrees not to send any electronic protected health information(PHI)to Seller unless required by Seller.Further,in any event an Instrument is returned to
Seller, Customer shall ensure it will return the Instrument to Seller purged of any and all electronic protected health information(PHI)in accordance with applicable
laws and regulatory guidance and in good repair,condition and working order,ordinary wear and tear resulting from proper use thereof alone excepted.Customer is
not an authorized dealer,representative,reseller,or distributor of any of Seller's Products.Customer represents and warrants that it(i)is not leasing or purchasing
the Product on behalf of a—third pa[Lyji)_is not t teasing or purchasing the Product in order to resell or dictrihute tiles L
PIONEERING DIAGNOSTICS
bioWrieux Confidential
purchasing the Product in order to export the Product from the country in which Seller shipped the Product pursuant to the ship-to address designated by Customer
at the time of ordering (the "Ship-To County'), and (iv)will not export the Product out of the Ship-To Country. Customer shall promptly disclose to Seller any
communication that it makes or receives from a government body,agency,or other regulatory or accrediting body pertaining to the Products or Customer's use
thereof.Customer shall provide Seller with and shall assist Seller in obtaining all error and other information generated through use of the Products,as reasonably
requested by Seller. Customer acknowledges and agrees that Seller shall have the right to use such information, provided that such use follows applicable laws
and regulations.
14. Confidentiality
For the purposes of this Agreement,confidential information shall mean the terms and pricing under this Agreement,materials,data,strategies,systems,pricing or
other information,relating to Sellers and/or its parent,related,affiliated or subsidiary companies'products,business,know-how,materials and/or data,including but
not limited to financial, marketing,technical,non-technical and/or scientific information of Seller("Confidential Information").Any Confidential Information acquired
by Customer,in whatever form,shall be kept confidential and shall not be used,published,or divulged by the receiving party to any other person,firm,or corporation,
or in any advertising or promotion regarding this Agreement or in any other manner or connection whatsoever. Provided, Customer may disclose Confidential
Information to its attorneys,accountants,or consultants who have a need to know to provide services to Customer and who are under an obligation of strict confidentiality
and agree not to use Confidential Information for any other purpose except the services to Customer. In the event of any breach of this section,Seller shall be entitled,in
addition to any remedies that it may have at law or in equity,to seek injunctive relief or specific performance,or to terminate this Agreement or applicable Sales Order
upon receipt of written notice to Customer.
15. Intellectual Property
Many of the Products are covered by U.S.patents,patents pending,or their foreign counterparts,owned or licensed by Seller or affiliates,which may be viewed at
www.biomerieux-usa.com/patents.Products leased,purchased,and/or sold hereunder are leased or sold by Seller solely for Permitted Uses by Customer,subject
to any restrictions on Permitted Uses.Depending on Customer's specific application(s),Customer may need one or more additional licenses or rights to use certain
of the Products.Customer represents and warrants that it has,or will obtain,all necessary Third Party Licenses for its specific application(s).Notwithstanding anything
to the contrary in this Agreement, nothing contained herein will be deemed,construed or interpreted as a grant,transfer or conveyance to Customer or any third
party,expressly or by inference, of any right,title or interest in,or license or right to use,any,all or any portions of Sellers inventions,patents,know-how,processes
or procedures,technology,copyrights or trademarks,or other intellectual property,other than the right to use the Products for Permitted Uses only.Customer shall
not:(i)have any ongoing right to be supplied with,or to manufacture or to have manufactured,any quantities of Products or Third Party Software beyond those
ordered in accordance with the terms and conditions of this Agreement; (ii)modify,copy,translate,enhance, reverse engineer,decompile,disassemble, create
derivative works based upon,sublicense,resell,or convey in any manner any Product or Third Party Software or any component thereof to any third party anywhere
in the world;or(iii)remove,modify,change,cover,or otherwise obscure from the Products any labels,trademarks,copyright,or other proprietary notices or legends.
Any breach by Customer of this section shall entitle Seller to terminate this Agreement or any Sales Quote upon receipt of written notice to Customer.
16. Regulatory
It is not the purpose of this Agreement to induce or encourage the referral of patients or the payment,directly or indirectly,of any remuneration by one party to the
other party in violation of applicable laws, rules, or regulations. Each party agrees that no part of the remuneration provided to the other party is a payment or
inducement for, and is not in any way contingent upon,the admission or referral of any patient.Seller shall comply with the reporting requirements of 42 C.F.R.§
1001.952(h), regarding "safe harbor'protection for discounts under the Medicare and Medicaid Fraud &Abuse law. Seller shall disclose to Customer on each
invoice,or as otherwise agreed,the amount of the discount or rebate.The statement shall inform Customer,of the amount of the discount or rebate so as to enable
Customer to satisfy its obligations to report such discount or rebate to the government.Seller and Customer represent that they have not been,nor are they about
to be excluded from participation in the federal Medicare or Medicaid program,Maternal and Child Health Services Block Grant,Block Grants for Social Services,
or State Children's Health Insurance (collectively, "Federal Health Care Programs")Each party agrees to notify the other promptly after receipt of final notice of
exclusion from any Federal Health Care Program. To the extent that Section 952 of the Omnibus Reconciliation Act of 1980 (the "Act") and the regulations
promulgated thereunder are applicable to the Terms,and until the expiration of four(4)years after the last sale of the Products pursuant to the Terms,Seller shall
make available,upon written request of the Secretary of Health and Human Services or the Comptroller General of the United States or any of their duly authorized
representatives,copies of the Terms and any books,documents, records and other data of Seller that are necessary to verify the nature and extent of the costs
incurred by Customer in purchasing such Products.If Seller carries out any of its duties under the Terms through a subcontract with a related organization involving
a value or cost of ten thousand dollars($10,000)or more over a twelve-month period,Seller shall cause such subcontract to contain a clause to the effect that,until
the expiration of four(4)years after the last sale of the Products pursuant to such contract,the related organization shall make available upon written request of the
Secretary of Health and Human Services or the Comptroller General of the United States or any of their duly authorized representatives,copies of such contract
and any books,documents,records and other data of said related organization that are necessary to certify the nature and extent of costs incurred by Customer in
purchasing such Products.Customer will be solely responsible for reporting applicable discounts on its Medicaid/Medicare cost reports.
Each party hereto will comply with all laws, rules and regulations,including without limitation,all applicable laws and regulations regarding the collection,use and
storage of protected health information(as defined in 45 C.F.R.160.103),including the Health Insurance Portability and Accountability Act of 1996,as amended by
(a)Subtitle D of the Health Information Technology for Economic and Clinical Health Act,(b)Title XII I of Division A and Title IV of Division B of the American Recovery
and Reinvestment Act of 2009(Pub.L.No.111-5),(c)the Affordable Care Act of 2010;(d)the federal regulations published at 45 C.F.R.parts 160 and 164,and(e)
any applicable state privacy and security laws regarding individually identifiable health information as applicable to the agreeing party,which relate to this Agreement.
17. Force Maieure
Seller is not responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control,including but not limited to
strike, war,fire, riot,accident,acts of God,hurricane,earthquake,severe weather,interruption of electrical supply to Customer's facilities,supplier-caused delays
or shortages, pandemic, epidemic, or compliance with any law, regulation, embargo restrictions or order of any government body or instrumentality thereof.
Performance shall be deemed suspended during said circumstances and extended for such time as said circumstances cause delay.Seller will have the right,in its
judgment,to apportion Products among its customers in any manner Seller deems necessary in order to comply with its regulatory obligations or in the handling of
any force majeure event which affects Seller's obligations to its customers.
18. Miscellaneous Provisions
This Agreement may only be modified in a writing signed by Customer and Seller which expressly states the intent to modify this Agreement.This Agreement may
not be transferred or assigned by Customer in whole or in part,to a third party,including an affiliate of Customer.Any attempted assignment or transfer shall be
null,void,and invalid.Seller may delegate,at its sole discretion,to any sales agent or distributor any and all of Seller's duties pertaining to distribution of Products
or related activities under the Agreement, so long as any such sales agent or distributor is authorized by Seller. Each clause of this Agreement is distinct and
severable.If any provision of this Agreement is declared unenforceable,the other provisions herein will remain in full force and effect.A waiver or modification by
Seller of any condition or obligation of Customer hereunder shall not be construed as a waiver or modification of any other condition or obligation and no such waiver
or modification granted on any one occasion shall be construed as applying to any other occasion.Any provision of these Terms that by its nature is reasonably
intended to survive beyond the termination or expiration of this Agreement shall survive.This Agreement will be interpreted according to the laws of the State of
Utah without application of conflict of laws principles.Any legal action or proceeding related to this Agreement shall be brought exclusively in the state or federal
courts located in Salt Lake City,Utah.The Parties hereby consent to the personal jurisdiction and venue of such courts and waive any objections to the convenience
of4his-for-umvThe-United-Nation"onvention-on-the-International-Sales-ef-Goods-will-not-apply-to-the-transactions-contem-I-A k`k;- ^^"^^^^nt
PIONEERING DIAGNOSTICS
bioWrieuxConfidential! -.
s
CLINICAL SERVICE TERMS AND CONDITIONS
FOR NON-BIOFIRE PRODUCTS
These terms and conditions(the"Terms")govern all transactions between Customer and bioMerieux,as each is defined in Section 1,involving the Services(as defined below).By executing
the bioMerieux Quote(such executed document referred to herein as the"Quote"and further defined below),or accepting delivery of the Services,Customer agrees to the Terms in full.
If there is any discrepancy or conflict between the Terms and the Quote,the Terms shall govern and control.Notwithstanding anything herein to the contrary,if there is a master agreement
signed by Customer and bioMerieux governing the services covered hereby(a"Master Agreement"),the terms and conditions of that Master Agreement shall prevail to the extent they
are inconsistent with the Terms.The Quote,which is hereby incorporated by reference herein,and the Terms(collectively,the"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,and shall not
be supplemented or explained by any evidence of trade usage or course of dealing.All Customer terms and conditions on any Customer documentation or contract are hereby objected to
and rejected and shall be of no force and effect or deemed to be binding on bioMerieux in whole or in part.
1.Definitions Notice of termination by bioMerieux shall be sent by bioMerieux, invoices shall be paid by cash,
"bioMerieux"shall mean bioMerieux,Inc.. to Customers address listed on the Quote.Notice check, or ACH. bioMerieux reserves the right to
"Customer"shall mean the entity or person(s) of termination by Customer shall be sent to: reject all credit card payments initiated after the
US.ServiceSales@biomerieux.com. If point of sale.
listed on the Sales Quote or the original purchaser terminated, a refund will be paid to Customer
of the Product. equal to the annual contract price less the price for 5.Customer Obligations
"Instruments"shall mean an instrument or those work performed to date, calculated using Customer shall: (a) be responsible for
instruments which are identified in the Quote or prevailing travel and labor rates; with any procurement of supplies necessary for the proper
which are otherwise ordered by Customer. remaining amount to be pro-rated from the date of operation of the Instrument; (b) provide full and
"Permitted Uses" shall mean the field of use termination through the contract expiration date. free access to the Instrument and Customers
and/or application of the Products (or specific Instrument operators du ring the hours of coverage
Products or classes of Products) by end-users, as 3. Instrument Eligibility under this Agreement ("Coverage Hours"), and
specified on Product labels or inserts affixed to or The Services provided under this Agreement apply access to and use of any machines, attachments
accompanying the Products, subject to any only to the bioMerieux furnished Instrument set or other equipment of Customer reasonably
restrictions or limitations on usage set forth forth in the Quote.In the event there has been a necessary to provide the specified maintenance
therein. period in excess of thirty(30)days from the later services; (c)follow all bioMerieux instructions in
"Products" shall mean Reagents, Instruments, of: (a) the last service event, (b) expiration of preparation for any Service implementation,
bioMerieux Software, or other items in the Sales warranty or (c) expiration of previous service including instructions regarding Customers
Quote or otherwise ordered by Customer, agreement, bioMerieux shall have the right to network readiness; (d) operate and use the
including services not covered under a separate conduct a pre-contract qualification inspection of Instrument,including any Instrument software,in
services agreement. the Instrument,billable at the prevailing list price accordance with applicable law and all bioMerieux
"Quote" shall mean the Service Level for a Preventive Maintenance visit plus any instructions and guidelines provided to Customer;
Descriptions,attached hereto and incorporated by additional parts and labor required to bring the (e)ensure all verification and maintenance control
reference and/or the service quotation or estimate Instrument to manufacturers specifications. is performed in accordance with all user manuals
provided by bioMerieux. Instrument(s) purchased more than seven (7) or maintenance records provided by bioMerieux,
Reagents" shall mean those reagents which are ears prior to the date ofthe Quote may be subject take all necessary
identified in the Sales Quote or which are y p y j (fl ry precautions to protect the
to additional service contract charges. Instrument, Customer's own data, property, and
otherwise ordered by Customer. software, from and against any computer viruses
"Services"shall mean the maintenance or repair and/or malicious codes;
services described in the Service Level 4. Payment Terms or eventual intrusions and (g)
Customer shall pay the price set forth in the Quote. maintain control of all passwords established by
Descriptions attached hereto and incorporated by and/or
late to the Instrument and
reference, and/or as designated on the service Payment is due thirty(30) days from receipt of Customer re /
quotation or estimate provided by bioMerieux. invoice.bioMerieux shall have the right to charge bioMerieux Software; (h) ensure no third party
an administrative fee equal to 2.5%of the quoted unauthorized by bioMerieux performs the Services
"bioMerieux Software" means computer air or maintenance
software, machine readable instructions or service agreement price for any change by hereunder or other repair
instruction sets developed by bioMerieux and Customer in the billing frequency after submission services;and(i)ensure the safety of bioMerieux's
delivered with or installed, loaded, integrated, of the initial order for a service contract. In case of representative, including ensuring that the
embedded, bundled, incorporated or read into delayed payment,bioMerieux shall have the right Instrument or areas where bioMerieux's
memory on any Instruments. to charge interest at a rate not to exceed one and representative accesses to perform the Services
one half percent (1 % %) per month, or the are cleaned and disinfected according to
"Third Party Licenses" shall mean the rights or established standard protocols to protect against
licenses of Customer under contractual maximum amount allowed by law, whichever is p P g
agreements between Customer and one or more less.bioMerieux also reserves the right to claim a potentially infectious materials prior to
third parties. reasonable compensation for any additional performance of the Services.Should re-imaging of
"Warranty" shall mean bioMerieux's warranty recovery expenditure.In the event Customer fails the computer and bioMerieux Software be
described herein in Section 9. to(a)pay a single installment,(b) comply with any required due to Customers failure to retain
payment terms and conditions, or(c)if bioMerieux password, additional charges may apply. In the
deems that the Customer's financial situation event the Instrument is returned to bioMerieux,
2.Term creates a risk of non-payment of amounts owed, Customer shall ensure it will return the
This Agreement is effective from the bioMerieux reserves the right to automatically Instruments to bioMerieux purged of any and all
commencement date asset forth in the Quote and terminate this Agreement without further liability electronic protected health information (PHI) in
shall continue for the term set forth in said Quote. or penalty upon written notice to Customer. accordance with applicable laws and regulatory
Notwithstanding the foregoing,either party may Unless approved in writing in advance guidance. Customer shall promptly disclose to
terminate this Agreement upon thirty bioMerieux any communication that it makes or
(30)days prior written notice to the other Party.
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CLINICAL SERVICE TERMS AND CONDITIONS
FOR NON-BIOFIRE PRODUCTS
receives from a government body,agency,or other 8. Exclusions limited to Instrument's failure or dysfunction.Any
regulatory or accrediting body pertaining to the The following are expressly excluded from the provision of the Services during the authorized
Products or Customers use thereof. Customer Services, and the Services do not include any move of the Instrument shall be subject to a
shall provide bioMerieux with and shall assist services or other obligation by bioMerieux,to the different billing on the basis of bioMerieux's
bioMerieux in obtaining any and all error and other extent required in connection with,as a result of, applicable price. If bioMerieux performs any
information generated through use of the or arising from:(a)Customers or any third party s moving services for the Instrument on behalf of
Products,as reasonably requested by bioMerieux. error, neglect, or abuse in the operation or Customer, additional installation fees may apply.
Customer acknowledges and agrees that handling of the Instrument, or the use of the This Agreement does not include replacement of
bioMerieux shall have the right to use such Instrument for a purpose other than that for which consumable parts (i.e. batteries, lamps, bulbs,
information, provided that such use is in it was designed;(b)Customer's failure to provide nozzles, or printer cartridges)or replacements of
compliance with applicable laws and regulations, a suitable environment for the Instrument or to Instrument due to obsolescence or material
Customer shall provide a secure Internet adequately furnish all facilities required by the upgrade. bioMerieux shall have no obligation to
connection and hereby authorizes bioMerieux or manufacturer's installation manual,including, but replace an Instrument installed more than five(5)
its representative to install VILINK® (SSL-based not limited to, proper electrical power, air years ago if it cannot be repaired.bioMerieux shall
encrypted remote access support) on the conditioning,and humidity control;(c)Customer's have no obligation to repair or replace computer
Instrument. Without prejudice to any other right failure to maintain the Instrument in accordance hardware or associated peripherals that are more
or remedy available to it under this Agreement, with the routine maintenance requirements set than three(3)years old.
bioMerieux reserves the right to charge additional forth in any manuals covering the Instrument;(d)
fees for the Services or terminate coverage under repair or service made or attempted by any party 9.Warranty
this Agreement in bioMerieux's sole discretion for other than bioMerieux's authorized personnel bioMerieux warrants that the Services to be
a breach of a Customer obligation above. without bioMerieux's prior written consent; (e) performed hereunder shall conform to
alterations performed by any party other than bioMerieux's standards and that the parts supplied
6.bioMerieux's Obligations bioMerieux or its authorized representative, hereunder are warranted against defects in
Subject to the Quote and Service Level which may include, but not be limited to, any workmanship and material for a period of thirty
Descriptions, bioMerieux shall provide to deviation from the manufacturer's physical, (30) days) from the date of installation of such
mechanical,or electrical design of the Instrument;
Customer remedial maintenance as follows: (a) Instrument.Customer's sole and exclusive remedy
provided the Instrument allows, by remote (f) attachments, which are defined as devices for breach of the above warranty shall be for
maintenance in addition to telephone support to which bioMerieux has not specifically designated bioMerieux to provide Customer with a repair or
assess the malfunction and, if possible, provide as compatible with the Instrument, but which are replacement for the Instrument which is found to
corrective solutions; (b) by using commercially nevertheless mechanically, electrically, orbe defective due to a breach of the above
reasonable efforts to provide Customer on-site electronically connected to the Instrument; (g) warranty.
remedial maintenance within the response time service and/or support on any LIS interface(unless
and coverage hours defined in the Service Level otherwise agreed to in writing); (h) software not The Warranty is personal to the Customer and may
Description and upon determination by Provided by bioMerieux or for the consequences of not be transferred in whole or in part to any third
bioMerieux that an on-site visit is necessary;said the use thereof, or for any damage caused by party, including an affiliate of Customer. Only the
remedial maintenance service to include labor, computer viruses, trojan horses, malicious or Customer as defined in these Terms may enforce the
travel, expenses, and parts deemed necessary by dangerous code,or any other element ofthe same Warranty.The Warranty is facility specific and does
bioMerieux.All such parts will be furnished on an nature not introduced or activated by bioMerieux not transfer if the Product is moved to another
fid t t du
e ue o reasons outside o
exchange basis and will be new standard, or occurringfacility,unless bioMerieux conducts such move.Any
equivalent refurbished parts,or parts of equivalent bioMerieux's reasonable control; (i) any description of the Products contained on
quality at bioMerieux's exclusive and sole option. unauthorized relocation of the Instrument;and 0) bioMerieux's website or promotional materials is for
Parts removed from the Instrument become the accidents or disasters,which will include, but not the sole purpose of identifying them,and any such
property of bioMerieux;and(c) install,at its sole be limited to, fire, flood, water, wind, lightning, description is not a part of the basis of the bargain
option, appropriate engineering changes on the earthquake,and termination of or surge in electric and does not constitute a warranty that a Product
Instrument.If bioMerieux is denied access during current.Service calls made by bioMerieux,and any shall conform to that description.No affirmation of
Coverage Hours, and if, in the sole opinion of related travel,labor and parts required to correct fact or promise made by bioMerieux, on its website
bioMerieux,an engineering change is necessary to Instrument malfunctions resulting from causes set or otherwise,shall constitute a warranty that the
maintain the Instrument in good operating forth above,including any repairs,labor and parts Products will conform to the affirmation or promise.
conditions,work performed during non-Coverage resulting from a breach of Customer's obligations Customer acknowledges and agrees Customer has
Hours shall be charged at the then prevailing as set out in Section 5, shall be invoiced by not relied on any other statement, promise,
bioMerieux to Customer at bioMerieux's then
bioMerieux travel and labor rates. representation,or warranty made by or on behalf of
current on-demand rates.Any move initiated by bioMerieux which is not expressly set forth in the
Customer of the Instrument where Services are Terms.
7.Customer Onsite Safety Policies contracted to be carried out by bioMerieux is
bioMerieux agrees that while onsite at Customer subject to bioMerieux's prior authorization. If
premises in the performance of this Agreement, Customer chooses to move the Instrument THE WARRANTIES AND REMEDIES SET FORTH IN
bioMerieux employees shall comply with without first obtaining such authorization, THIS SECTION 9 ARE EXCLUSIVE AND IN LIEU OF ALL
Customer's reasonable, written onsite safety bioMerieux shall be released from any liability OHER WARRANTIES AND REMEDIES OF ANY
policies given to any such employees prior to related to any and all consequences from such NATURE WHATSOEVER. TO THE MAXIMUM
arrival at Customer's site. Instrument's move, including but not EXTENT PERMITTED UNDER APPLICABLE LAW,
BIOMERIEUX MAKES NO FURTHER,AND HEREBY
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CLINICAL SERVICE TERMS AND CONDITIONS
FOR NON-BIOFIRE PRODUCTS
i Customer acknowledges and agrees bioMereux
DISCLAIMS ANY REPRESENTATIONS, benchmarking purposes and which does not
WARRANTIES,OR GUARANTEES WHATSOEVER, has entered into this Agreement in reliance upon permit the identification of individuals.
EXPRESS OR IMPLIED,STATUTORY,OR OTHERWISE the disclaimers of warranties and limitations of
REGARDING THE SUBJECT MATTER OF THIS liability in the Terms and that the same form an
AGREEMENT,ANY PRODUCT,REAGENT, essential basis of the bargain between the parties. 12. Regulatory
INSTRUMENT,SOFTWARE,THIRD PARTY It is not the purpose of this Agreement to induce or
SOFTWARE,THIRD PARTY LICENSES,OR ANY 11.Software encourage the referral of patients or the payment,
SERVICES PROVIDED UNDER THIS AGREEMENT, Any code or software incorporated into the directly or indirectly, of any remuneration by one
INCLUDING WITHOUT LIMITATION,ANY Product which is not bioMerieux Software("Third party to the other party in violation of applicable
REPRESENTATION OR WARRANTY WITH RESPECT Party Software"), is provided to Customer"as-is" laws,rules,or regulations.Each party agrees that no
TO FITNESS FOR A PARTICULAR PURPOSE, or subject to the terms, if any, set forth in any part of the remuneration provided to the other
MERCHANTABILITY,NON-INTERFERENCE,LACK OF "shrink-wrapped" license packed with the party is a payment or inducement for,and is not in
INFRINGEMENT OF THE RIGHTS OFTHIRD PARTIES, Products or "click-wrapped" license visually any way contingent upon,the admission or referral
OR WHICH MAY ARISE FROM COURSE OF DEALING displayed upon installation or execution of the of any patient. bioMerieux shall comply with the
OR USAGE OF TRADE,OR REGARDING THE Software,or any other terms and conditions of use reporting requirements of 42 C.F.R.§ 1001.952(h),
COMPATIBILITY OR INTEROPERABILITY OF THE by the owner, developer, or manufacturer (the regarding "safe harbor" protection for discounts
PRODUCT,INSTRUMENT,SOFTWARE,OR THIRD "End-User License Agreement").Customer hereby under the Medicare and Medicaid Fraud &Abuse
PARTY SOFTWARE WITH OTHER PERSONAL OR agrees to use the Third Party Software in law.bioMerieux shall disclose to Customer on each
THIRD PARTY EQUIPMENT,LICENSES,DEVICES, accordance with the terms and conditions of the invoice,or as otherwise agreed,the amount of the
PROPERTY OR ACCESSORIES WHICH CUSTOMER applicable End-User License Agreement. Nothing discount or rebate. The statement shall inform
USES WITH OR CONNECTS TO THE PRODUCTS. in this Agreement is intended or shall be Customer,of the amount of the discount or rebate
interpreted to grant to Customer any ownership of so as to enable Customer to satisfy its obligations to
10. LIMITATION OF LIABILITY or title to the any bioMerieux Software or Third report such discount or rebate to the government.
NOTWITHSTANDING ANYTHING IN THE TERMS, Party Software(as used together"Software")and bioMerieux and Customer represent that they have
QUOTE, OR ANCILLARY AGREEMENT TO THE Customer shall not be permitted to use the source not been, nor are they about to be excluded from
CONTRARY, BIOMERIEUX'S CUMULATIVE LIABILITY code of the Software. BIOMERIEUX MAKES NO participation in the federal Medicare or Medicaid
TO CUSTOMER, OR ITS EMPLOYEES, AGENTS, REPRESENTATIONS OR WARRANTIES OF ANY KIND program, Maternal and Child Health Services Block
CUSTOMERS,OR INVITEES,OR ANY THIRD PARTIES, OR NATURE, NOR SHALL BIOMERIEUX HAVE ANY Grant, Block Grants for Social Services, or State
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), LIABILITY WITH RESPECT TO, ANY THIRD PARTY Children's Health Insurance (collectively, "Federal
INDEMNITY,OR ANY OTHER LEGAL OR EQUITABLE SOFTWARE OR THIRD PARTY LICENSES, AS Health Care Programs")Each party agrees to notify
THEORY, ARISING OUT OF OR RELATED TO, DEFINED IN SECTION 1.Customer shall ensure that the other promptly after receipt of final notice of
WITHOUT LIMITATION, THE TERMS, QUOTE, any dangerous or malicious code, including all exclusion from any Federal Health Care Program.To
ANCILLARY AGREEMENT,PRODUCTS,OR PRODUCT viruses,Trojan horse,or any other element of the the extent that Section 952 of the Omnibus
PERFORMANCE (EXCEPT AS EXPRESSLY STATED IN same nature is not written,charged or introduced Reconciliation Act of 1980 (the "Act") and the
SECTION 9)SHALL BE EXPRESSLY LIMITED TO THE into Customer's environment or the Instrument. regulations promulgated thereunder are applicable
TOTAL SALES QUOTE AMOUNT PAID BY CUSTOMER bioMerieux shall not be responsible for any to the Terms, and until the expiration of four (4)
FOR THE SPECIFIC SALES QUOTE FROM WHICH ANY contamination byvirus,Trojan horses,or any other years after the last sale of the Products pursuant to
CLAIM AROSE. NOTWITHSTANDING ANYTHING IN malicious code or element of a similar nature and the Terms, bioMerieux shall make available, upon
THE TERMS, ANY QUOTE, OR ANCILLARY reserves the right to bill any provision requested written request of the Secretary of Health and
AGREEMENT TO THE CONTRARY, BIOMERIEUX by the Customer as a result of such a Human Services or the Comptroller General of the
SHALL NOT BE LIABLE TO CUSTOMER, OR ITS contamination.bioMerieux may,at no charge and United States or any of their duly authorized
EMPLOYEES, AGENTS, CUSTOMERS, OR INVITEES, at its discretion,issue(a)minor software updates representatives,copies of the Terms and any books,
OR ANY THIRD PARTIES,IN ANY INSTANCE FOR ANY that maintain existing capabilities and enable the documents, records and other data of bioMerieux
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR Instrument to perform in accordance with the that are necessary to verify the nature and extent of
CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF specifications; and (b) any software necessary to the costs incurred by Customer in purchasing such
GOODWILL OR OPPORTUNITY, OR ANY LOST standardize Instrument for service maintenance Products.If bioMerieux carries out any of its duties
PROFITS, LOSS OF ANY DATA OR USE, EVEN IF "Updates"). bioMerieux may also make available under the Terms through a subcontract with a
BIOMERIEUX HAS BEEN ADVISED OF THE for purchase software updates that allow the related organization involving a value or cost of ten
POSSIBILITY OF SUCH DAMAGES AND Instrument to exceed performance specifications thousand dollars($10,000)or more over a twelve-
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL ("Upgrades")at a price that is dependent upon the month period, bioMerieux shall cause such
PURPOSE OF ANY LIMITED WARRANTY MADE nature of the Upgrade. Customer accepts full subcontract to contain a clause to the effect that,
HEREIN.The limitations set forth in this section shall responsibility to manage and maintain all critical until the expiration of four(4)years after the last
not apply with respect to:(i)injury to person and/or operating system patches to minimize risk of sale of the Products pursuant to such contract,the
tangible property arising from the willful exposure ofthe Product to cyber threats and latest related organization shall make available upon
misconduct or gross negligence of bioMerieux;and Software updates,upon being provided with same written request of the Secretary of Health and
(ii) fraud or to the extent such disclaimer is by bioMerieux or the applicable third party. Human Services or the Comptroller General of the
prohibited under applicable law. Customer acknowledges and agrees that United States or any of their duly authorized
bioMerieux may extract, from time to time, representatives, copies of such contract and any
operational data from Instruments in order to books, documents, records and other data of said
maximize Instruments operation. Operational related organization that are necessary to certify the
data includes but is not limited to data that is nature and extent of costs incurred by
collected for analytical, statistical, or
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CLINICAL SERVICE TERMS AND CONDITIONS
FOR NON-BIOFIRE PRODUCTS
Customer in purchasing such Products. Customer but not limited to strike,war,fire,riot,accident, acts shall be null, void, and invalid. bioMerieux may
will be solely responsible for reporting applicable of God, hurricane, earthquake, severe weather, delegate,at its sole discretion,to any sales agent or
discounts on its Medicaid/Medicare cost reports. interruption of electrical supply to Customer's distributor any and all of bioWrieux's duties
facilities, supplier-caused delays or shortages, or pertaining to distribution of Products or related
Each party hereto will comply with all laws,rules and compliance with any law, regulation, embargo activities under the Agreement,so long as any such
regulations, including without limitation, all restrictions or order of any government body or sales agent or distributor is authorized by
applicable laws and regulations regarding the instrumentality thereof. Performance shall be bioMerieux. Each clause of this Agreement is
collection, use and storage of protected health deemed suspended during said circumstances and distinct and severable. If an
information (as defined in 45 C.F.R. 160.103), p g o provision of this
extended for such time as said circumstances cause Agreement is declared unenforceable, the other
including the Health Insurance Portability and delay. bioMerieux will have the right, in its provisions herein will remain in full force and effect.
Accountability Act of 1996, as amended by (a) judgment, to apportion Products among its A waiver or modification by bioMerieux of any
Subtitle D of the Health Information Technology for customers in any manner bioMerieux deems condition or obligation of Customer hereunder shall
Economic and Clinical Health Act, (b) Title XIII of necessary in order to comply with its regulatory not be construed as a waiver or modification of any
Division A and Title IV of Division B of the American obligations or in the handling of any force majeure other condition or obligation and no such waiver or
Recovery and Reinvestment Act of 2009(Pub.L.No. event which affects bioMerieux's obligations to its modification granted on any one occasion shall be
111-5),(c)the Affordable Care Act of 2010; (d)the customers. construed as applying to any other occasion.
federal regulations published at 45 C.F.R. parts 160 Sections 1,2,9,10,11,12,14 ofthe Terms shall survive
and 164, and (e) any applicable state privacy and
security laws regarding individually identifiable 14. Miscellaneous Provisions expiration or termination of the Agreement for
health information as applicable to the agreeing This Agreement may only be modified in a writing whatever reason. This Agreement will be
party,which relate this Agreement. signed by Customer and bioMerieux which expressly interpreted according to the laws of the State of
states the intent to modify this Agreement. This North Carolina without application of conflict of
13. Force Majeure Agreement,may not be transferred or assigned by laws principles.
bioMerieux is not responsible for any failure to Customer in whole or in part, to a third party,
perform or delay attributable in whole or in part to including an affiliate of Customer. Any attempted
any cause beyond its reasonable control, including assignment or transfer
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Ar
CLINICAL SERVICE TERMS AND CONDITIONS
FOR NON-BIOFIRE PRODUCTS
SERVICE LEVEL DESCRIPTIONS
SERVICE AGREEMENT OPTIONS
Full Service Agreement:
Scope of Coverage: Covers all telephone support, labor, travel, expenses, and parts for an unlimited number of telephone
support calls and on-site service visits, if necessary to resolve the issue, to the extent defined in the General Service Terms
and Conditions.
Coverage:
• Onsite Support:Available between 7:OOAM—7:OOPM local time in the Continental U.S.,7 days a week
• Technical Support: Provided 24 hours a day/7 days a week. Contact Information for Technical Support: 1-800-682-
2666
• Preventive Maintenance: All Instruments with Full-Service coverage (except MYLA) receive 1 Preventative
Maintenance visit("PM")per year, except for the following Instruments,which receive 2 PM's per year:VITEK 2 (120
or above), EASYMAG, and VITEK REVEAL. MYLA does not require a PM visit.
Full-Service Limitations and Additional Terms:
• Remote Support: bioM6rieux's remote diagnostics feature for troubleshooting instrumentation is included (NOTE:
remote access denial may result in additional service charges for unnecessary dispatches).
• Service Level: bioM6rieux shall use commercially reasonable efforts to provide Customer on-site remedial
maintenance during the stated coverage hours within twenty-four(24) hours of bioM6rieux's determination that an
on-site visit is necessary.
• Zone Charges:Apply for Instruments located outside the Continental U.S.
• The extent of the level of the technical call center support is at the discretion of bioM6rieux and does not include
support such as, but not limited to, intensive data mining, training, LIS Support, or situations where dispatch is
required.
• Initiation of coverage is subject to Section 3 "Instrument Eligibility" of the General Service Terms and Conditions.
PM Plus Agreement:
Scope of Coverage:Covers all telephone support and recommended PMs.
Coverage:
• Technical Support: Provided 24 hours a day/7 days a week. Contact Information for Technical Support: 1-800-682-
2666
• Preventive Maintenance:All Instruments with PM Plus coverage receive 1 Preventative Maintenance visit("PM")per
year, except for the following Instruments, which receive 2 PM's per year: VITEK 2 (120 or above), EASYMAG, and
VITEK REVEAL.
• Remote Support: bioM6rieux's remote diagnostics feature for troubleshooting instrumentation is included (NOTE:
remote access denial may result in additional service charges for unnecessary dispatches).
PM Plus Limitations and Additional Terms:
• This plan does not include remedial maintenance service, which will be charged at the prevailing On Demand (POR)
rates for spare parts,travel time, labor time, and travel expenses.
• Zone Charges:Apply for Instruments located outside the Continental U.S.
Version—March 2025 Page 5/6
CLINICAL SERVICE TERMS AND CONDITIONS
FOR NON-BIOFIRE PRODUCTS
• The extent of the level of the technical call center support is at the discretion of bioMerieux and does not include
support such as, but not limited to, intensive data mining, training, LIS Support, or situations where dispatch is
required.
• An On Demand purchase order is required prior to each service event requiring an onsite service visit. There is a
minimum dispatch charge of 5 hours, at the prevailing hourly rates,for on-site visits.
Repair Center Contract(RCC)(Only Available for PREVICOLOR V2):
The Repair Center Contract ("RCC") covers telephone support and the repair of PREVICOLOR V2 Instrument(s) via a
replacement of the covered instrument fulfilled by bioMerieux's authorized Instrument Repair Centers. The number of
replacements is limited as follows:
- PREVICOLOR V2—Replacements limited to three (3) per year.
• No PMs: No on-site Preventative Maintenance is included with a Repair Center Contract.
• Technical Support:Provided 24 hours a day/7 days a week.The extent of the level of the technical call center support
is at the discretion of bioMerieux and does not include training. Technical Hotline support may provide service
resolution through a parts order or issuance of a replacement. Contact Information for Technical Support: 1-800-
682-2666
• Replacements: Replacement instrument shall be new standard or equivalent refurbished. Upon notification and
authorization, bioMerieux will pay for all related transportation charges. bioMerieux will ship a replacement
instrument with all necessary parts and in turn the customer will return the malfunctioning instrument and all parts
provided per the Return Checklist,e.g.power cords,nozzles,dip tubes and reagent trays. The customer is responsible
for returning the malfunctioning instrument, in its entirety,within 30 days of receipt of the replacement instrument.
Failure to return the malfunctioning instrument, in its entirety, on time, will result in a penalty fee and/or the
agreement being terminated.
• Initiation of coverage is subject to Section 3 "Instrument Eligibility".
On Demand Service—Purchase Order Required(POR):
On demand service is provided on a Per-Call Basis and a purchase order is required prior to each service event requiring
telephone technical support or an onsite service visit.All telephone support, parts, labor,and travel hours are invoiced at the
prevailing rates. If the billable technical call center support call results in a dispatch of an FSE,the call center support will not
be charged,and only the dispatched charges will apply.There is a minimum dispatch charge of 5 hours,at the prevailing hourly
rates for on-site visits. Contact Information for Technical Support: 1-800-682-2666
2025 Hourly Rates:
- Telephone Support rate is$300.00 per half hour and charged in increments of half hours during business hours
and$450.00 per half hour for After hours,weekends, and holidays*.
- Hourly travel time and labor rates for on-site visits are $600.00 per hour (7:OOAM - S:OOPM local time in the
Continental U.S., Monday through Friday).After hours,weekends, and holidays the hourly rates are currently
$900.00 per hour.
*Holidays are defined as: New Year's Day, Martin Luther King Day, Good Friday, Memorial Day, Independence Day, Labor
Day,Thanksgiving and following day, Christmas Eve,and Christmas Day.
Service Contract Inquiries: US.ServiceSales@bioMerieux.com
Version—March 2025 Page 6/6
Confidential
Standard Limited Warranty
Before returning any Product,please consult the instructions below and contact bioMerieux, Inc.,
including its affiliate BioFire Diagnostics, LLC ("BFDX") (collectively, "BMX"), Technical Support at
either: (800) 735-6544, (801) 736-6354, or support@biofiredx.com. CUSTOMER AGREES TO ALL TERMS,
CONDITIONS AND OBLIGATIONS CONTAINED IN THIS STANDARD LIMITED WARRANTY.
1. DEFINITIONS. "Pouch" means the clinical diagnostic thermal cycling oligonucleotide assays or primers,
probes or reagents manufactured by BFDX. "Instrument(s)" means FilmArray® 1.5, FilmArray@ 2.0,
FilmArray®Torch, and/or BioFire°SpotFire® devices which are manufactured and/or distributed by BFDX,
BMX, or through a third-party approved by BMX. "Software" means software developed and distributed by
BMX. "Third-party Software" means software developed, sold, or licensed by a party other than BMX.
"Third-party Products" mean any Pouch, Instrument or ancillary product used with the Instruments that is
manufactured by a party other than BFDX. "Product" means a Pouch, Instrument or parts or components
thereof, and/or Software manufactured by BFDX. "Specifications" means the criteria established by BFDX
in a user manual to measure, evaluate, or assess the operation or performance of the applicable Product
subject to any updates or modifications by BFDX after receipt of the Product by Customer.
2. WARRANTY TERM. This Limited Warranty begins when BMX gives Products to a carrier/shipper for
delivery to Customer.The warranty is effective from that date for a period of twelve(12) months. Customer
may purchase an extended warranty from BMX to cover Products beyond this initial twelve (12) month
period. Instrument repairs and replacements are covered by this Standard Limited Warranty for(i) ninety
(90) days after the date of repair or replacement or (ii) the remainder of the original warranty period,
whichever is longer.
3. WARRANTY COVERAGE. Subject to the terms and conditions herein, BMX warrants that:
(i) Instruments will be materially free from defects in material and workmanship, and will perform
substantially in accordance with the Specifications in BFDX's user manual;
(ii) Properly installed and executed software will operate substantially in accord with the Specifications
when used with an Instrument sold by BMX or by a third-party approved by BMX;
(iii) Pouches will be materially free from defects in material and workmanship,and when properly stored
and maintained by Customer in compliance with the user manual will be usable for at least the
period of time stated on its label.
(iv) The original end-user customer ("You" "Your" or "Customer") is the person with rights under this
Limited Warranty. The Customer's rights and obligations under this Limited Warranty will bind and
inure to the benefit of Customer's respective successors, heirs, executors and administrators and
permitted assigns.
4. WARRANTY EXCLUSIONS. This Limited Warranty excludes: (i) repairs or other services which are
necessary because of any use that does not conform to the user manual; (ii) normal wear and tear other
than an operational or mechanical breakdown; (iii)decontamination of an Instrument; (iv)theft or other loss;
(v) damage that does not affect functionality; (vii) problems arising from or related to misuse, alteration,
neglect, accident, or reckless, abusive,willful or intentional conduct; (vii) problems arising from or related to
external electrical power sources; (viii) improper maintenance, repair, or disassembly (including partial
disassembly) by anyone other than BMX or its authorized representatives or using parts, accessories or
supplies not provided by BMX; (ix)problems arising from or related to Software on any device other than the
device sold by BMX or through a third-party approved by BMX; (x) instruments, devices, consumables, or
@2022 bioMerieux, Inc.- BIOMERIEUX and the BIOMERIEUX logo are used pending and/or registered
trademarks belonging to bioMerieux, or one of its subsidiaries, or one of its companies.
Patents: www.biomerieux-usa.com/patents
515 Colorow Drive • Salt Lake City, UT 84108
bioMerieux Confidential
accessories manufactured by any party other than BFDX, including assays, centrifuges, computers,
monitors, printers or other peripheral accessories or devices, and Third-party software, including the device
operating system or applications software (other than Software); and (xi) any cost incurred for additional
equipment, parts, or accessories related to a Software upgrade or new version of the Software.
5. BENEFITS OF THIS LIMITED WARRANTY. This Limited Warranty provides the following benefits to
Customer:
Loss or Damage During Shipping: In the event that Products are lost or damaged during shipping by a
carrier, BMX will replace the Products upon notice from the Customer initiating a claim as provided by
Section 7 below;
Instrument Repairs: BMX will furnish labor, parts and/or replacement equipment necessary to repair
operational or mechanical breakdowns of an Instrument as provided by Section 3 above;
Software Upgrades: BMX will provide new versions, releases or upgrades of the Software as provided by
Section 3 above, provided that BMX may require Customer install and use a Software upgrade as a
condition precedent to continued services under this Limited Warranty;
Optional Instrument Recalibration and Quality Inspection: No more than one(1)time during the period
of this Limited Warranty, Customer may return an Instrument for recalibration, maintenance and quality
inspection; and
Telephone Support: BMX currently offers twenty-four-hour telephone customer support by calling BMX's
Customer Support Department subject to the terms, conditions and limitations of this Limited Warranty.
6. ASSIGNMENT OF THIRD PARTY WARRANTIES. While BMX extends no warranty and has no liability or
obligation with respect to Third Party Items, BMX assigns (to the extent permitted to do so)any applicable
third party manufacturer warranties to Customer.
7. INITIATING WARRANTY CLAIMS AND SERVICE. In order to obtain warranty service,, contact Customer
Support to evaluate the claim as directed above. Customer Support may ask Customer to report the issue
in writing. BMX may attempt to resolve the problem over the telephone. If your problem cannot be resolved
over the telephone, BMX will determine (in its sole discretion)the most practicable resolution, which may
include one or more of the following:(i)shipment of new or reconditioned replacement parts on an exchange
basis together with instructions for Customer to perform installation, (ii)shipment of a new or reconditioned
replacement Instrument that is at least functionally equivalent to the original Instrument on an exchange
basis, (iii)shipment of a new, in-service or reconditioned Instrument that is at least functionally equivalent
to the original Instrument on a temporary"loan"basis, (iv)assistance from BMX's Field Support Specialists,
or authorized distributors at Customer's location, or(v) issuance of a return material authorization (RMA)
for Customer to return the Product for repair or replacement by BMX. If BMX elects to ship a replacement
Product to Customer, the original Product becomes BMX property upon Customer's receipt of the
replacement. Customer must return the original Product to BMX within twenty (20)days after Customer's
receipt of the replacement Product, or pay BMX the retail value of the replacement Product
8. CUSTOMER REQUIREMENTS TO RETURN FOR SERVICE. If BMX elects to repair a defective Product
in its facility, the defective Product must be received by BMX no later than thirty (30) days after the date
BMX issued the RMA. Prior to shipping the defective Product to BMX, Customer must follow the return
instructions specified by BMX including,without limitation,decontamination,data backup procedures,other
procedures specified by BMX, and all shipping instructions. Failure to follow all instructions may result in
delay of return of the Product. Customer is solely responsible for shipment of the Product to BMX free of
any biological, chemical or organic materials, agents or toxins and otherwise in accordance with all
applicable laws, rules and regulations, and BMX reserves the right to refuse delivery or return the product
without service if Customer does not strictly comply with this requirement. Further, Customer is solely
responsible for backing up any data to enable Customer to reconstruct or recover lost or altered data and
for removing any confidential, proprietary or personal information. BMX disclaims responsibility for any lost,
damaged or destroyed software program, data or other information stored on any data storage media or
bioWrieux Confidential l
any part of any Product covered by this Limited Warranty, and BMX disclaims responsibility for deletion or
alteration of the contents of any hard drive or data storage media which may occur during service of a
Product. BMX is not responsible for the restoration or reinstallation of any programs or data other than
software installed by BMX when the Instrument was originally manufactured. When making repairs, BMX
reserves the right to use reconditioned or replacement items or parts that are at least functionally equivalent
to original manufacturer specifications.
9. WARRANTY RETURNS FROM OUTSIDE THE U.S. If an ITAR-controlled Instrument is to be returned to
BMX from outside the U.S.,You must follow all steps set forth in Section 8. Failure to follow all instructions
can result in a U.S. export violation, potentially necessitating acquiring a further export license. Further,
shipping non-compliance may result in a several-week delay of the Instrument's return shipment to
Customer. Customers outside the U.S. may be required to seek further information from their authorized
distributor.
10. WARRANTY SERVICE RESPONSE TIMES. If a defective Product is sent to BMX under an RMA, BMX
will repair or replace the Product and deliver it to a carrier for return shipment to Customer, as promptly as
possible, and in most cases within ten (10)working days after BMX's receipt of the defective Product and
all required RMA documentation. Except for incremental shipping costs as provided above, BMX will not
be liable for any delay in providing services under this Limited Warranty.
11. BREACH. In the event of any breach of this Limited Warranty: (i)as to Instruments,Your sole remedy will
be for BMX to repair or replace the Instrument with new or refurbished parts,free of charge,at BMX's facility
and (ii) as to Software or Pouches, Your sole remedy will be for BMX to repair, replace or correct such
Software or Pouches (including, at BMX's election, replacement with a new version of the Software). This
Limited Warranty specifically includes labor and materials. BMX will pay all costs associated with shipping
and return shipping of Products only during the term of this Limited Warranty.
12. LIMITATIONS. Except as expressly set forth above, BMX makes no further or additional representations
or warranties of any kind or nature with respect to the Products.Any description of the Products contained
on BMX's website or promotional materials is for the sole purpose of identifying them. No affirmation of fact
or promise made by BMX, on its website or otherwise, will constitute a warranty that the Products will
conform to the affirmation or promise. BMX DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT,
INTEROPERABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BMX DOES
NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT THE SOFTWARE IS
ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. The entire risk arising out of the use or
performance of the Products remains with Customer. BMX will not be liable for loss of or damage to
systems, programs, or data; cost of procurement of substitute goods, services, or technology; or any
special, indirect, incidental, consequential, or exemplary damages including, but not limited to, damages
for loss of business profits or business interruption, based upon principles of contract,warranty,negligence,
strict liability or other tort, breach of any statutory duty, principles of indemnity or contribution, or any other
theory of liability, even if BMX has been advised of the possibility of such damages. Notwithstanding
anything to the contrary in this Limited Warranty, in no event will the liability of BMX (whether arising from
a claim based on contract, warranty, tort or otherwise), if any, to Customer under this Limited Warranty
exceed the actual amount received by BMX in connection with its sale or distribution of the applicable
Product(s).
13. MISCELLANEOUS.
(i) All Limited Warranty provisions and agreements will be binding upon and ensure to the benefit of
the parties and their respective legal representatives, successors and assigns. BMX may assign
its rights and delegate its duties under this Limited Warranty by written notice to Customer.
(ii) This Limited Warranty and the related certificate of coverage constitute the entire understanding of
the parties with respect to the subject matter hereof. No amendment, modification, rescission or
alteration of these terms will be binding unless made in writing, and signed by BMX.
(iii) Every provision of this Limited Warranty is intended to be severable. If any term or provision is
bioWrieux Confidential I
illegal or invalid for any reason whatsoever, such illegality or invalidity will not affect the validity of
the remainder of this Limited Warranty.
(iv) BMX and Customer agree that the validity, construction and performance of this Limited Warranty
will be governed by the laws of the State of Utah, USA (excluding any of its conflict of laws
principles).Venue for any dispute or proceeding arising from or related to this Limited Warranty will
be exclusively vested in any state or federal court located in Salt Lake County, State of Utah, USA,
and each party irrevocably and unconditionally consents to the jurisdiction of such courts and
irrevocably and unconditionally waives (i) any right to trial by jury and (ii) any claims, defenses or
objections, whether substantive or procedural, based upon lack of personal jurisdiction,
inconvenient venue or the like.
(v) Except to the extent expressly prohibited by applicable law, BMX and Customer will be prohibited,
and hereby irrevocably and unconditionally waives any right to bring any claim, demand or cause
of action arising from or related to this Limited Warranty more than one(1)year after the expiration
of the coverage period of this Limited Warranty.
14. U.S. GOVERNMENT-SPECIFIC PROVISIONS. BMX warrants to the U.S. Government that the Products
delivered hereunder are merchantable and fit for use for the particular purpose described in the applicable
contract. In the event that the terms of BMX's Limited Warranty conflict with the warranty terms contained
in this clause, the terms of this clause will govern the contract, unless some other resolution is specified in
the award document. Except as otherwise provided by an express warranty, BMX will not be liable to the
United States Government, or any of its agencies, employees,or agents, in a breach of warranty action for
consequential damages resulting from any defect or deficiencies in accepted items. In the event that the
terms of BMX's Limited Warranty limitation of liability clause(s) place greater limits on BMX's liability than
do the terms contained in this clause, the terms of this clause will govern the contract.
For more information regarding BMX's Limited or Extended Warranties, or to receive a quote for
coverage on your Instrument, please contact us at 1- 800-735-6544. Be sure to have the serial
number of your Instrument when requesting a quote.