Loading...
HomeMy WebLinkAboutContract 56574 CSC No. 56574 ADDENDUM TO TERMS AND CONDITIONS OF SALE FOR PRODCUTS AND SERVICES BETWEEN THE CITY OF FORT WORTH AND THERMO ELECTRON NORTH AMERICA LLC This Addendum to Term and Conditions of Sale for Products and Services ("Addendum") is entered into by and between Thermo Electron North America LLC ("Seller") and the City of Fort Worth("Buyer"), collectively the"parties." The Contract documents shall include the following: 1. The Terms and Conditions of Sale for Products and Services; and 2. This Addendum. Notwithstanding any language to the contrary in the attached Terms and Conditions of Sale for Products and Services the "Agreement", the parties stipulate by evidence of execution of this Addendum below by a representative of each party duly authorized to bind the parties hereto,that the parties hereby agree that the provisions in this Addendum below shall be applicable to the Agreement as follows: 1. Term. The Agreement shall commence upon the date signed by the Assistant City Manager below("Effective Date") and shall expire no later than December 31, 2022 ("Expiration Date"),unless terminated earlier in accordance with the provisions of this Agreement or otherwise extended by the parties. 2. Termination. a. Convenience. Either Buyer or Seller may terminate the Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. b. Breach.If either party commits a material breach of the Agreement,the non- breaching Party must give written notice to the breaching party that describes the breach in reasonable detail. The breaching party must cure the breach ten (10) calendar days after receipt of notice from the non-breaching party, or other time frame as agreed to by the parties. If the breaching party fails to cure the breach within the stated period of time, the non-breaching party may, in its sole discretion, and without prejudice to any other right under the Agreement, law, or equity, immediately terminate the Agreement by giving written notice to the breaching party. C. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by Buyer in any fiscal period for any payments due hereunder, Buyer will notify Seller of such occurrence and the Agreement shall terminate on the last day of the OFFICIAL RECORD CITY SECRETARY Addendum FT.WORTH,TX 7. Sovereign Immunity. Nothing herein constitutes a waiver of Buyer's sovereign immunity. To the extent the Agreement requires Buyer to waive its rights or immunities as a government entity; such provisions are hereby deleted and shall have no force or effect. 8. Limitation of Liability and Indemnity. To the extent the Agreement, in any way, requires Buyer to indemnify or hold Seller or any third party harmless from damages of any kind or character, Buyer objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. IP Indemnification. Seller agrees to indemnify, defend, settle, or pay, at its own cost and expense, including the payment of attorney's fees, any claim or action against the Buyer for infringement of any U.S. patent, copyright, trade mark, , trade secret; provided, however, Seller's liability under this Section does not extend to any such Indemnified Items caused by the negligence or willful misconduct of Buyer its employees, agents, or representatives or contractors, or use of a Product in combination with equipment or software not supplied by Seller where the Product alone would not be infringing, Seller's compliance with Buyer's designs,specifications or instructions,(y)use of the Product in an application or environment for which it was not designed, or(z) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer will promptly notify Seller in writing of any claim covered by Seller's indemnification obligations hereunder. Seller may assume exclusive control of the defense of such claim or, at the option of the Seller,to settle the same. Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense(a) procures for Buyer the right,at no additional expense to Buyer,to continue using the Product; (b)replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or(c) in the event(a) and (b) are not practical,refund to Buyer the amortized amounts paid by Buyer with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR, AND BUYER'S SOLE AND EXCLUSIVE REMEMDY IN RESPECT OF, THE CLAIMS DESCRIBED HEREIN. 9. Data Breach. Seller further agrees that it will monitor and test its data safeguards from time to time, and further agrees to adjust its data safeguards from time to time in light of relevant circumstances or the results of any relevant testing or monitoring. If Seller suspects or becomes aware of any unauthorized access to any financial or personal identifiable information ("Personal Data") by any unauthorized person or third party, or becomes aware of any other security breach relating to Personal Data held or stored by Seller under the Agreement or in connection with the performance of any services performed under the Agreement or any Statement(s) of Work("Data Breach"),Seller shall immediately notify Buyer in writing and shall fully cooperate with Buyer at Seller's expense to prevent or stop such Data Breach. In the event of such Data Breach, Seller shall fully and immediately comply with applicable laws, and shall take the appropriate steps to remedy such Data Breach. Seller will defend, indemnify and hold Buyer, its Affiliates, and their respective Addendum Page 3 of 7 employee who is not legally eligible to perform such services. SELLER SHALL INDEMNIFY BUYER AND HOLD BUYER HARMLESS FROM ANY PENALTIES,LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY SELLER, SELLER'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. Buyer, upon written notice to Seller, shall have the right to immediately terminate the Agreement for violations of this provision by Seller. 15. No Boycott of Israel. If Seller has fewer than 10 employees or the Agreement is for less than $100,000, this section does not apply. Seller acknowledges that in accordance with Chapter 2270 of the Texas Government Code, Buyer is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Seller certifies that Seller's signature provides written verification to Buyer that Seller: (1) does not boycott Israel; and(2) will not boycott Israel during the term of the Agreement. 16. Right to Audit. Seller agrees that Buyer shall,until the expiration of three(3)years after final payment under the Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Seller involving transactions relating to the Agreement. Seller agrees that Buyer shall have access during normal working hours to all necessary Seller facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section.Buyer shall give Seller reasonable advance notice of intended audits. 17. Prohibition on Boycotting Energy Companies. Seller acknowledges that in accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2,the Buyer is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the Buyer with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code,as added by Acts 2021,87th Leg.,R.S., S.B. 13, §2. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Seller certifies that Contractor's signature provides written verification to the Buyer that Contractor: (1) does not boycott energy companies; and(2)will not boycott energy companies during the term of this Agreement. 18. Prohibition on Discrimination Against Firearm and Ammunition Industries. Seller acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the Buyer is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the Buyer with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade Addendum Page 5 of 7 [Executed effective as of the date signed by the Assistant City Manager below.] ACCEPTED AND AGREED: CITY OF FORT WORTH CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including y, Jesus J.Chapa WC26,102113:48 CDT) ensuring all performance and reporting Name: Jesus J. Chapa requirements. Title: Deputy City Manager APPROVAL RECOMMENDED: Kelly cl' By: Veland Kelly Cleveland(Oct 25,202108:38 CDT) Name: Sasha Kane Nei/Noakes Title: Sr. Contract Compliance Specialist By: Neil Noakes(Oct 26,202111:12 CDT) Name: Neil Noakes APPROVED AS TO FORM AND Title: Chief of Police LEGALITY: ATTEST: By: Name: Taylor Paris By: � . Title: Assistant City Attorney Name: Ron P. Gonzales �p4a4nn�� a FoRr a Title: Acting City Secretary p-o!°°°°°°°°O°�o$ CONTRACT AUTHORIZATION: duo o0.�d M&C: (None Required) ��°° °=A Date Approved: o o°°*d °°0000000°O° b �a�nexASa�p Form 1295 Certification No.: N/A THERMO ELECTRON NORTH AMERICA LLC. Name: Dawn Konieczko Title: Contract Specialist OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Addendum Page 7 of 7 FORT WORTH. Purchase Order Page: 1 of 3 City Of Fort Worth Dispatch Via Email 200 Texas Street Purchase Order Date Revision FORT WORTH TX 76102 FW035-0000005805 08-03-2021 Payment Terms Freight Terms Contract ID: NET 30 FOB Destination,Frt 13409 Prepaid Requester Phone Requisition ID: Davis,Carol L 817/392-4220 0000006335 Supplier: 0000021788 Ship To:0000000237 FORT WORTH POLICE THERMO ELECTRON NORTH AMERICA LLC FORENSICS LAB/PROPERTY ROOM P O BOX 742775 3616 E.Lancaster ATLANTA GA 30374-2775 Fort Worth TX 76103 United States United States Bill To: FORT WORTH POLICE POLICE-Fiscal&Equipment Management 505 West Felix Fort Worth TX 76115 United States Line Item/Description Item/Description Quantity UOM PO Price Extended Amt Due Date 1 - 1 912AO771 1.00 EA 26395.61 26395.61 08/03/2021 Lab Equipment, Spectrometer Software,iS50, Nicolet,912A0771 Fund Dept Account Project Activity BudgetYr 36003 0350420 5750010 102944 CAPPUR 9999 Fund Dept Account 10100 0356601 5610109 2 - 1 699-124500 1.00 EA 0.01 Lab Equipment,English 0.01 OS/03/2021 Kit,IS50,Nicolet,699- 124500 Fund Dept Account Project I Activity BudgetYr 36003 0350420 5750010 102944 CAPPUR 9999 Fund Dept Account 10100 0356601 5616109 3 - 1 869-168800 1.00 EA 4003.97 4003.97 08/03/2021 Lab Equipment, Spectrometer,ID7 ATR, Nicolet,869-168800 Fund Dept Account Project Activity BudgetYr 36003 0350420 57500 00 102944 CAPPUR 9999 Fund Dept Account 10100 0356601 5610109 4 - 1 869-174400 1.00 EA 2210.26 2210.26 08/03/2021 Lab Equipment,Optical Base,ATR ITX,869- 174400 Authorized Signature FORT WORTH. Purchase Order Page: 2 of 3 City Of Fort Worth Dispatch Via Email 200 Texas Street Purchase Order Date Revision FORT WORTH TX 76102 FW035-0000005805 08-03-2021 Payment Terms Freight Terms Contract ID: NET 30 FOB Destination,Frt 13409 Prepaid Requester Phone Requisition ID: Davis,Carol L 817/392-4220 0000006335 Fund Dept Account I Project I Activity I BudgetYr 36003 0350420 �56101109 102944 CAPPUR 9999 Fund Dept 10100 0356601 5 - 1 085-703800 1.00 EA 0.01 0.01 08/03/2021 Lab Equipment,Power Cord,120V,3 Conductor,085-703800 Fund Dept Account Project Activity BudgetYr 36003 0350420 5750010 102944 CAPPUR 9999 Fund Dept Account 10100 0356601 5610109 6 - 1 840-128900 1.00 EA 5440.64 5440.64 08/03/2021 Lab Equipment, Beamsplitter,Axis, X700,GE,KBR,840- 128900 Fund Dept "5610109 Project Activity BudgetYr 36003 0350420 102944 CAPPUR 9999 Fund Dept 10100 0356601 7 - 1 834-103400 1.00 EA 560.22 560.22 08/03/2021 Lab Equipment,System Qualification,FT-IR, Nicolet,834-103400 Fund Dept Account Project Activity I BudgetYr 36003 0350420 5750010 1 102944 CAPPUR 9999 Fund Dept Account 10100 1 0356601 5610109 Agreement authorized by the Purchasing Manager on June 25,2021,for the Police Department with Thermo Electron North America LLC.The agreement shall begin June 25,2021 and shall expire on upcoming September 30th,unless terminated earlier in accordance with this Agreement.Upon the expiration of the Initial Term,the Agreement may shall renew automatically under the same terms and conditions for up to four additional one year periods(October 1 to September 30),unless City or Vendor provides the other party with notice of nonrenewal at least 60 days before the expiration of the Initial Term or renewal period.All prices, Authorized Signature FORT WORTH. Purchase Order Page: 3 of 3 City Of Fort Worth Dispatch Via Email 200 Texas Street Purchase Order Date Revision FORT WORTH TX 76102 FW035-0000005805 08-03-2021 Payment Terms Freight Terms Contract ID: NET 30 FOB Destination,Frt 13409 Prepaid Requester Phone Requisition ID: Davis,Carol L 817/392-4220 0000006335 terms and conditions of the agreement shall be as stated in Bid No.21-0142 The maximum amount authorized by this purchase agreement shall not exceed $44,820.00.Accepting orders that exceed$44,820.00 are in violation of this award and payment of such unauthorized amounts will not be the responsibility of the City of Fort Worth.Upon accepting a release order from our user department/division for this agreement,please insure you are provided a purchase order number and a release number.Invoices must be mailed to the ordering department/division releasing service/commodity and the invoice shall contain:1)Bid number;2)Department Purchase Order Number;3)Release Number;4)Department Name;5)Address where service/commodity was delivered. Total PO Amount 38610.72 Authorized Signature CPQ-00382307 1.00 August 4, 2021 1 5225 Verona Road Lead Time Payment Terms Freight Terms Expiration Date Madison WI 53711 3-5 weeks NET 30 DAYS Origin- Prepay And October 3,2021 1400 Northpoint Parkway UPON INVOICE Add West Palm Beach FL 33407 DATE Company Name Customer Name CITY OF FORT WORTH ELIZABETH VAN See end pages of quote for PO Submission details :ustomer Info: Sales Contact Info: :ustomer Name: ELIZABETH VAN Contact Name: Cam Maclsaac :ompany Name: CITY OF FORT WORTH Phone: 940-241-2555 ,ddress: 1000 3616 E LANCASTER Email: Fort Worth Texas 76102 cam.macisaac@thermofisher.com United States 'hone: 8173924507 :mail: elizabeth.van@fortworthgov.org FWPD Bid11 iS50 tem Description Qty •1 912AO771 1 IS50 ALIGNED FIXED GOLD KBR NO BSPLTR Nicolet iS50 Analytical Flex FTIR Spectrometer and Software Beamsplitter not included-must select one below 0.09 cm-1 resolution with variable aperture --Touch Point one-touch sampling operation Gold optics Fixed, single position source and detector mirrors — DLaTGS Detector with KBr window —Long Lifetime PolarisT"^ Infrared Source System electronics board with USB communication port(full speed) Upgradeable to include iS50 ATR Built-in,wide range diamond AT —Accepts all Smart Accessories and many others --Expandable with the iS50 GC-IR and iS50 NIR modules Compatible with Continuum FT-IR Microscope and TGA Accessory Ready for iS50 ABX automatic beamsplitter changer Without iS50 ABX: Internal storage for 2 additional beamsplitters — Internal Validation wheel for SPV or ValPro Qualifications included — Includes NIST Traceable Polystyrene and NG11 Glass Sealed and Desiccated with KBr sample compartment windows Includes OMNIC 9 standard software: OMNIC Standard Software Touch point software support for iS50 spectrometer and modules Group and Ungroup file capability for easy management of related sample data in a single file without loss of information —Auto Analyze feature to perform and report TQ prediction, searching, Qcheck or Peak Labelling immediately after collection without any need for intervention. --Auto Report feature to automatically view results, print or add to current notebook. Automatic atmospheric suppression to remove H2O and CO2 interferences(no standards needed) —System Performance verification (SPV) monitors system status TQ Professional for quantitative and qualitative method development prediction and deployment. CPQ-00382307 1.00 August 4, 2021 2 5225 Verona Road Lead Time Payment Terms Freight Terms Expiration Date Madison WI 53711 3-5 weeks NET 30 DAYS Origin-Prepay And October 3, 2021 1400 Northpoint Parkway UPON INVOICE Add West Palm Beach FL 33407 DATE Company Name Customer Name CITY OF FORT WORTH ELIZABETH VAN See end pages of quote for PO Submission details tem Description Qty Full-featured report generator and electronic laboratory notebook OMNIC MacrosBasic to compile routine tasks into simple push button operations with access via OMNIC's customizable toolbar — Password protection and user login support Full array of data conversion and correction tools such as Kubelka Munk, Kramers Kronig and Advanced ATR correction Complete set of spectral data processing tools Spectral Search: high-resolution library generation, customizable information fields, single or multi-region search, library management, with over 1400 spectra in included libraries Easy to set-up parameters, live display of data collection and live spectral preview Extensive on-line help and video tutorials OMNIC Specta Material Characterization software Unique task-based user interface significantly improves identification of unknowns --Advanced data management capability treats your entire hard drive as a database Exclusive Multi-Component and Contaminant Search Support for FT-IR and Raman spectral data Data collection for Nicolet iS10, 210 and 6700 FT-IR Spectrometers —A total of 9,181 infrared spectra in high resolution format in the OMNIC Specta General Chemicals collection of hydrocarbons, alcohols, phenols, aldehydes, ketones, esters, anhydrides, lactones, dyes, indicators, alkynes, nitro and azo compounds phosphorous and sulphur containing compounds, inorganic, and silanes •2 699-124500 1 KIT IS50 MAIN ENGLISH LANGUAGE Nicolet iS50 English Language Kit .3 869-168800 1 ATR ID7/ITX AR-COATED DIAMOND CRYSTAL AR Diamond Crystal Plate for Smart iTX/iD7/Everest ATR Single Reflection Diamond Crystal Plate-High Throughput Spectral range with KBr/DTGS optics: 7,800-400 cm-1 —Best overall performance monolithic diamond crystal — Includes a 5-year parts-only warranty •4 869-174400 1 ATR ITX BASE Smart iTX Optical Base Crystal plate not included-must select at least one High pressure tower with two tips plus volatiles cover Automatic accessory recognition Includes a 5-year parts-only warranty For iS10, iS20, 210, iS50 and x700 Latest OMNIC Service Pack required for existing system installations •5 085-703800 1 CPQ-00382307 1.00 August 4, 2021 3 5225 Verona Road Lead Time Payment Terms Freight Terms Expiration Date Madison WI 53711 3-5 weeks NET 30 DAYS Origin-Prepay And October 3,2021 1400 Northpoint Parkway UPON INVOICE Add West Palm Beach FL 33407 DATE Company Name Customer Name CITY OF FORT WORTH ELIZABETH VAN *See end pages of quote for PO Submission details tem Description Qty CORD/PWR NAM 2.5M 10A NM5- Power Cord North American 120v, 3 Conductor tem Description Qty .0 834-103500 1 VALPRO NICOLET SERIES FT-IR SYS QUAL-A4 ValPro Nicolet Series FT-IR System Qualification-A4 Binder/per PR26338 .0 840-128900 1 X700 GE ON KBR ON AXIS BEAMSPLITTER Ge-on-KBr On-Axis Beamsplitter(7800-350 cm-1) Quote Subtotal: $45,419.02 Promotions/ Discounts: -$6,808.30 Quote total less discounts: $38,610.72 Quotation Totals: $38,610.72 ales tax exemption/resale certificates or direct pay permits must be provided with the order documents, if applicable. If valid sales 3x exemption documentation is not provided, buyer shall pay all applicable federal, state and local taxes in addition to the price fated on this quotation. lease see below for monthly payment options and contact financialservices anthermofisher.com or call (800) 986-9731 ext. 7 for lore information. Please note: Payments are estimates only and availability of lease financing is subject to credit approval and cceptance of terms. Terms and interest rates may vary based on customer's financial profile. CPQ-00382307 1.00 August 4, 2021 4 5225 Verona Road Lead Time Payment Terms Freight Terms Expiration Date Madison WI 53711 3-5 weeks NET 30 DAYS Origin - Prepay And October 3, 2021 1400 Northpoint Parkway UPON INVOICE Add West Palm Beach FL 33407 DATE Company Name Customer Name CITY OF FORT WORTH ELIZABETH VAN 'See end pages of quote for PO Submission details easing estimate is based on a total cost of$38,610.72; you may choose from the monthly payment options below: Lease Term (months) 24 36 48 60 Fair Market Value Purchase Option: $1,328.59 $996.93 $816.23 $700.01 $1.00 Purchase Option: $1,739.41 $1,190.75 $917.00 $754.07 Number of Advance Payments: 1 1 1 1 Choosing the Lease that Best Meets Your Needs: 'air Market Value (FMV) Purchase Option 'he intent of this lease is not to own but to gain the benefits of the equipment in exchange for a low monthly payment. Your :nd-of-Lease Options are: continue to lease the equipment, purchase a fair market value or return/upgrade the equipment. 1.00 Purchase Option 'his is a lease-to-own option where you would own the equipment after all monthly payments have been made. It is similar to finance agreement and provides you a defined payment schedule over the lease term. tandard System Warranty: icolet iS50 includes one year of on-site warranty coverage.The system warranty period is 12 months from the date of installation or 14 months om the date of shipment, whichever is less.The Nicolet iS50 requires qualified service installation, or the warranty will be voided. The system also icludes parts only warranties specific to the following parts: iterferometer(10 years), Source (10 years), Laser(5 years). he Nicolet iS50 is field service installed. ems marked with an asterisk(*)on the face of the quotation are not Thermo Fisher Scientific products. Thermo Fisher Scientific is not responsible it the installation,operation or warranty of these products. Manufacturers may provide their own warranties to you. Thermo Fisher S C I E N T I F I C TERMS AND CONDITIONS OF SALE FOR PRODUCTS AND SERVICES 1. GENERAL. Thermo Electron North America LLC ("Seller") imposed with respect to the sale, delivery, or use of any Products or hereby offers for sale to the buyer named on the face hereof("Buyer")the Services covered hereby, all of which taxes and duties must be paid by products("Products") and/or annual support plans("Support Plan(s)") Buyer. If Buyer claims any exemption,Buyer must provide a valid,signed and billable services("Technical Support")[Support Plans and Technical certificate or letter of exemption for each respective jurisdiction. Support may be referred to collectively as"Services"]as listed on the face 4. TERMS OF PAYMENT. Seller may invoice Buyer immediately for hereof on the express condition that Buyer agrees to accept and be bound the single lump sum amount equal to the total charges for the initial Term by the terms and conditions set forth herein ("Agreement"). Buyer's of a Support Plan, upon shipment of Products or upon completion of receipt of Products or Seller's commencement of Services hereunder will Technical Support for the price and all other charges payable by Buyer in constitute Buyer's acceptance of this Agreement. No waiver, consent, accordance with the terms on the face hereof. If no payment terms are modification,amendment or change of the terms contained herein shall be stated on the face hereof, payment shall be net thirty(30)days from the binding upon Seller unless agreed in writing and signed by Seller. Seller's date of invoice. International Technical Support may require payment in failure to object to additional or different terms contained in any advance.Buyer will grant a security interest in the Products sold under this subsequent communication from Buyer will not be a waiver or Agreement until payment of the full purchase price to Seller in accordance modification of the terms set forth herein and all such proposals contained with Article 9-103 of Uniform Commercial Code-Secured Transactions. in Buyer's order are subject to acceptance in writing by an authorized If Buyer fails to pay any amounts when due,Buyer shall pay Seller interest representative of Seller. thereon at the greater of a periodic rate of one and one-half percent(1.5%) 2. PRICE. All prices quoted by Seller or Seller's representatives are per month or the highest rate stipulated by applicable law,Seller reserves valid for thirty(30)days,unless otherwise stated in writing. All prices for the right to require from Buyer full or partial payment in advance,or other the Products or Services will be as specified by Seller or, if no price has security that is satisfactory to Seller, at any time that Seller believes in been specified or quoted, will be Seller's standard prices in effect at the good faith that Buyer's financial condition does not justify the terms of time of shipment of Products or delivery of Services. All prices are subject payment specified. All payments shall be made in U.S. Dollars unless to adjustment on account of specifications,quantities,raw materials,cost otherwise specified in Seller's invoice. of production,shipment arrangements or other terms or conditions that are 5.A. PRODUCT DELIVERY. All Products will be shipped to the not part of Seller's original quotation. Unless otherwise stated in the destination specified by Buyer, FCA (INCOTERMS 2010) at OEM quotation, the quoted rate for Technical Support includes Work Time, shipping point or Seller's distribution facility, as applicable, which will Travel Time and Standby Time in accordance with the following schedule vary depending on Product type and availability and may include points and conditions; except that Technical Support requested without at least outside the United States (U.S.) (inquire for specific shipping point seven(7)days advanced notification shall be subject to airfare charges in information). Notwithstanding specified INCOTERMS,Seller shall select addition to the Standard Rate. carrier on Buyer's behalf and Seller agrees to arrange transportation of (a) Work Time—shall include all hours that Seller's service personnel are Products to Buyer's destination, and to act as the importer of record on on the Buyer's job site,either working or ready for work and shall be behalf of Buyer to clear the Products through U.S.customs. All freight, payable at the applicable specified rates. taxes,duties and insurance,if any,charges shall be prepaid and added to (b)Travel Time—shall include the time spent by Seller's service personnel Buyer's invoice. Seller may,at its election,make partial shipments of the in traveling between their customary headquarters and the Buyer's job Products and invoice each shipment separately. Seller reserves the right site and in returning(including travel occurring on Saturdays,Sundays to withhold shipments in whole or in part and/or terminate any Services,if and holidays). Except as otherwise stated in the Services quotation, Buyer fails to make any payment to Seller when due or otherwise fails to Travel Time will be invoiced per diem at the applicable Travel Zone perform its obligations hereunder. Seller's termination of Services will rates in Seller's standard service list prices. Air travel and car hire not relieve Buyer's obligation to pay all amounts due for Services provided related expenses will be charged in addition to the daily rate at cost by Seller prior to the termination date. All shipping dates are approximate plus a 10%administration fee. only, and Seller will not be liable for any loss or damage resulting from (c) Standby Time—shall include the time that Seller agrees in writing,at any delay in delivery or failure to deliver which is due to any cause beyond its sole discretion, to reserve its service personnel to be ready to Seller's reasonable control. In the event of a delay due to any cause beyond perform work for the Buyer, whether on the job site or not, up to a Seller's reasonable control,Seller reserves the right to terminate the order maximum of 8 hours a day,between the hours of 8:00 a.m. and 5:00 or to reschedule the shipment within a reasonable period of time, and p.m.,local standard time on Saturdays,Sundays and holidays. Standby Buyer will not be entitled to refuse delivery or otherwise be relieved of Time shall be paid for at the special rates quoted by Seller at the time any obligations as the result of such delay. of Buyer's request or, if none, at the current Double Time Rate; and 5.B.CANCELLATION OR CHANGES BY BUYER If Buyer requests Standby Time preceded and/or followed by Work Time is cumulative that Seller delay delivery of Products for any reason, Seller may place in determining Overtime. Products in storage at Buyer's risk and expense and for Buyer's account. (d) Standard Rate—the Service rate quoted by Seller that shall be paid for Orders in process may be cancelled only with Seller's written consent and time worked on a regular schedule of eight(8)hours per day,Monday upon payment of Seller's cancellation charges. Orders in process may not through Friday(excluding Seller's holidays), between 8:00 a.m. and be changed except with Seller's written consent and upon agreement by 5:00 p.m.local standard time. the parties as to an appropriate adjustment in the purchase price therefor. (e) Overtime Rate—if applicable for the quoted Services,the rate of one Credit will not be allowed for Products returned without the prior written and a half times the Standard Rate shall be paid for any time worked consent of Seller. Before returning any item, contact Seller's Order in excess of eight(8)hours or between the hours of 5:00 p.m.and 8:00 Administration Department for a Return Material Authorization (RMA) a.m.local standard time;but not exceeding sixteen(16)hours per day, number at(800) 532-4752. Buyer may need to complete an RMA Form Monday through Friday,and for any time on Saturdays,not to exceed which includes a Hazard Free Form and/or Instrument Contamination Data sixteen (16) hours. Overtime shall be billed in 30 minute blocks; or Form. If authorized by Seller,Buyer must return items to Seller in their longer time blocks,if quoted by the Supplier. original or equivalent packaging,prepay shipping charges,and insure the (f) Double Time Rate—the rate of twice the Standard Rate shall be paid shipment or accept the risk if the item is lost or damaged in shipment. In for time worked in excess of sixteen(16)hours per day,without a six addition, Seller reserves the right to charge the Buyer the list price for (6)hour break,Monday through Friday,and for all time on Saturdays, missing components or subassemblies when incomplete items are returned Sundays and holidays. Holidays shall be those observed by Seller. to Seller. Authorized returns of any unused items which are free from 3. TAXES AND OTHER CHARGES. Prices for the Products and material defects to Seller,in its sole discretion,may be subject to a twenty Services exclude all sales, use, value added and other taxes and duties percent(20"/o)restocking charge. 1 Thermo Fisher S C I E N T I F I C TERMS AND CONDITIONS OF SALE FOR PRODUCTS AND SERVICES Requests by Buyer to delay,postpone or suspend on-site Services,due to operate in substantial conformance with Seller's published specifications; no fault of Seller, shall be subject to Seller's ability to recall its service provided that Buyer (a) promptly notifies Seller in writing upon the representatives and to cancel and/or reschedule of any of their travel discovery of any covered defect in the Products, including the Product arrangements;and provided that,Buyer pays any and all additional costs model and serial number(if applicable)and details of the warranty claim; (including,Travel Time and expenses)incurred by Seller as a result of the and (b) after Seller's review, Seller will provide Buyer with an RMA Services being postponed or suspended by Buyer. Cancellation of number and services data,which may include biohazard decontamination scheduled Services may be subject to a cancellation fee of twenty percent procedures and other Product-specific handling instructions. Then, if (20"/o)if Seller is notified less than 7 business days prior to the scheduled applicable,Buyer may return the defective Products to Seller with all costs date of service. prepaid by Buyer. Replacement parts may be new or refurbished, at the 6. DELIVERY OF SERVICES. Except as otherwise stated on the face election of Seller. All replaced parts shall become the property of Seller. hereof, all Services will be provided by Seller or its agent between the Shipment to Buyer of repaired or replacement Products will be made in hours of 8:00 a.m. and 5:00 p.m. local standard time, Monday through accordance with the Delivery clause of this Agreement. Except for new Friday,excluding Seller's holidays,either at Seller's principal offices or, consumable items manufactured and sold by Seller, this warranty at Seller's option,at Buyer's installation address. If Seller advises Buyer expressly excludes all other consumable parts or components(e.g.,bulbs, that Services should be performed at Seller's facility,Buyer will properly belts, cartridges, etc.) in the Products. If Seller elects to repair defective package the Products to prevent damage, clearly mark the RMA number medical device instruments, Seller may, in its sole discretion, provide a on the outer packaging, and ship it, via postage/freight prepaid, to the replacement loaner instrument to Buyer as necessary for use while the address set forth on the face hereof or such different address as Seller may instruments are being repaired. from time to time provide to Buyer.After Seller completes the Services, Notwithstanding the foregoing, Products supplied by Seller that are or has made a determination that the products are beyond repair, Seller obtained by Seller from an original manufacturer or third party supplier may,at its option,either advise Buyer to scrap the Products or to have the are not warranted by Seller; but Seller agrees to assign to Buyer any Products shipped, postage/freight prepaid, back to Buyer's installation warranty rights in such Product that Seller may have from the original address stated on the quotation,or to such other address as Buyer requests. manufacturer or third party supplier, to the extent such assignment is In the event Buyer requires expedited delivery,such delivery will be made allowed by such original manufacturer or third party supplier. at Buyer's expense. If Seller advises Buyer that Services should be In no event shall Seller have any obligation to make repairs,replacements performed at Buyer's site,Buyer will use its best efforts to provide Seller or corrections under the Warranty, in whole or in part, as the result of or with all requested diagnostic information for any products requiring with respect to: (a)use of the Products in a manner for which they were Services; and subject to compliance with Buyer's reasonable security not designed;(b)improper storage and handling of the Products;(c)use of requirements, will allow Seller free access to all relevant equipment, the Products in combination with equipment or software not supplied by documentation and records. In addition, Buyer will cooperate with Seller(d)shipping damage incurred en route to Buyer's site or because of Seller's efforts to perform the Services and will provide such additional moving equipment, in which case Seller will promptly provide a cost assistance as Seller may reasonably request. At the completion of the estimate for Technical Support to the consignee for filing claims to carriers Services, Seller's representatives will provide Buyer with a field service for shipping damage;(e)flood,lightning, earthquake,tornado,hurricane report on which will be indicated the number of hours spent and the or fire, bombing, armed conflict, malicious mischief, sabotage or other materials used in completing the work. Buyer's signature on the field natural or man-made disasters; (f)normal wear and tear,physical abuse, service report will signify approval of the information in the report and misuse, sprinkler damage, electrical surge or abnormal power variation; Seller's satisfactory completion of the Services. If Buyer does not sign the (g) repairs, maintenance, or modifications made by anyone other than report or provide written objection within five (5) business days after Seller trained personnel or without Seller's supervision and/or approval; receipt, then the report will be deemed unequivocally approved and (h) relocation and reinstallation of equipment; although upon request accepted by Buyer. Seller will supervise the removing,crating,relocation and reinstallation of 7. TITLE AND RISK OF LOSS. Notwithstanding the transport terms the Products at Seller's current Services rates; (i) maintenance or indicated above,title to and risk of loss of the Products will pass to Buyer replacement of media(i.e.,floppy disks, plotter supplies, etc.) whatever upon delivery of possession of the Products by Seller to the carrier at the the reason for loss, failure or damage; 0) beta-site support; (k)operator time and place of shipment;provided,however,that title to any software training;or(1)repairing Product malfunctions if the fault is not with the incorporated within or forming a part of the Products will at all times equipment. If Seller determines that Products for which Buyer requested remain with Seller or the licensor(s)thereof,as the case may be. All risk warranty services are not covered by this warranty, Buyer will pay or of loss or damage to Buyer's products being transported for Services shall reimburse Seller for all costs of investigating and responding to such remain with Buyer during shipment to and from the Buyer's site and request at Seller's then prevailing time and materials rates. If Seller during Seller's performance of Services hereunder. provides Services or replacement parts that are not covered by this 8. WARRANTIES. Seller's sole obligation with respect to the Services warranty,Buyer shall pay Seller therefor at Seller's then prevailing time is to provide the quoted Services in a workmanlike manner and if Buyer and materials rates. provides notice of defect in Service within ninety(90)days of completion ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, of such Services, Seller will, at its sole option, either reperform the RELOCATION OR ALTERATION TO OR OF, OR OTHER Services without charge to Buyer or grant Buyer a credit for the amount TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY paid by Buyer with respect to such Service. Seller warrants that the PERSON OR ENTITY OTHER THAN SELLER WITHOUT SELLER'S Products will operate or perform substantially in conformance with Seller's PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT published specifications and be free from defects in material and PARTS NOT SUPPLIED BY SELLER,SHALL IMMEDIATELY VOID workmanship, when subjected to normal, proper and intended usage by AND CANCEL ALL WARRANTIES WITH RESPECT TO THE properly trained personnel,for the period of time set forth in the Product AFFECTED PRODUCTS AND/OR SERVICES. THE OBLIGATIONS documentation, published specifications or package inserts (the CREATED BY THIS WARRANTY STATEMENT FOR SELLER TO "Warranty Period"). If a Warranty Period is not specified in Seller's REPAIR OR REPLACE A DEFECTIVE PRODUCT OR TO Product documentation, published specifications, or package inserts, the REPERFORM OR CREDIT THE PRICE OF DEFECTIVE SERVICES Warranty Period for new instruments is twelve(12)months from the date SHALL BE THE SOLE REMEDY OF BUYER FOR SUCH of shipment to Buyer;and for all other Products is ninety(90)days from DEFECTIVE PRODUCTS OR SERVICES UNDER THIS the date of shipment. During the Warranty Period,Seller agrees to repair AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS or replace,at Seller's option,defective Products so as to cause the same to WARRANTY STATEMENT, SELLER DISCLAIMS ALL OTHER 2 Thermo Fisher S C I E N T I F I C TERMS AND CONDITIONS OF SALE FOR PRODUCTS AND SERVICES WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR this license if Buyer fails to comply with any term or condition herein. WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING Buyer agrees,upon termination of this license,to immediately stop using WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF all software products and related documentation provided hereunder and MERCHANTABILITY, FITNESS FOR ANY PARTICULAR all copies and portions thereof. PURPOSE, OR NONINFRINGEMENT. SELLER DOES NOT Certain of the software products provided by Seller may be owned by one WARRANT THAT THE PRODUCTS OR SERVICES ARE ERROR- or more third parties and licensed to Seller or may be stand-alone software FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT. products, which Buyer hereby agrees are subject to a separate browse- 9. INDEMNIFICATION. wrap, shrink-wrap or click-thru end user license agreement (EULA). 9.1 By Seller. Seller will indemnify,defend and save Buyer,its officers, Accordingly, the warranty and indemnification provisions herein do not directors,and employees from and against any and all damages,liabilities, apply to such software, which are exclusively provided in the applicable actions, causes of action, suits, claims, demands, losses, costs and EULA. expenses (including without limitation reasonable attorneys' fees) 11. LIMITATION OF LIABILITY. NOTWITHSTANDING ("Indemnified Items") asserted by another party against Buyer for (i) ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE bodily injury to or death of persons or damage to tangible property to the LIABILITY OF SELLER UNDER THESE TERMS AND CONDITIONS extent caused by the negligence or willful misconduct of Seller, its (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, employees,agents or representatives or contractors in connection with the INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING performance of Services at Buyer's premises under this Agreement; and LIABILITY OF SELLER FOR BREACH OF WARRANTY(THE SOLE (ii) claims that a Product infringes any U.S. patent, copyright or trade REMEDY FOR WHICH IS PROVIDED UNDER THE PRODUCT AND secret; provided, however, Seller's liability under this Section does not SERVICES WARRANTIES HEREIN) SHALL NOT EXCEED AN extend to any such Indemnified Items caused by either(u)the negligence AMOUNT EQUAL TO THE LESSER OF(A)THE TOTAL PURCHASE or willful misconduct of Buyer,its employees,agents or representatives or PRICE THERETOFORE PAID BY BUYER TO SELLER WITH contractors, (v)by any third party, (w)use of a Product in combination RESPECT TO THE PRODUCT(S) OR SERVICES GIVING RISE TO with equipment or software not supplied by Seller where the Product alone SUCH LIABILITY OR (B) ONE MILLION DOLLARS ($1,000,000). would not be infringing, (x) Seller's compliance with Buyer's designs, NOTWITHSTANDING ANYTHING TO THE CONTRARY specifications or instructions, (y)use of the Product in an application or CONTAINED HEREIN,IN NO EVENT SHALL SELLER BE LIABLE environment for which it was not designed, or (z) modifications of the FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR Product by anyone other than Seller without Seller's prior written approval. INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION Buyer will promptly notify Seller in writing of any claim covered by DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, Seller's indemnification obligations hereunder. Seller may assume LOSS OF REVENUE,LOSS OF DATA,LOSS OF PROFITS OR LOSS exclusive control of the defense of such claim or,at the option of the Seller, OF GOODWILL), REGARDLESS OF WHETHER SELLER (a) HAS to settle the same. Buyer agrees to cooperate reasonably with Seller in BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR connection with the performance by Seller of its obligations in this (b)IS NEGLIGENT. Section. 12. EXPORT RESTRICTIONS. Buyer acknowledges that each Product Notwithstanding the above,Seller's infringement related indemnification and any related services, software and technology, including technical obligations shall be extinguished and relieved if Seller,at its discretion and information supplied by Seller or contained in documents (collectively at its own expense (a) procures for Buyer the right, at no additional "Items"),may be subject to export controls of the U.S.government and/or expense to Buyer,to continue using the Product;(b)replaces or modifies other governments. Such export controls may include,but are not limited the Product so that it becomes non-infringing,provided the modification to, the Export Administration Regulations of the U.S. Department of or replacement does not adversely affect the specifications of the Product; Commerce (the "EAR"), which may restrict or require licenses for the or (c) in the event (a) and (b) are not practical, refund to Buyer the export of Items from the U.S.and their re-export from other countries and amortized amounts paid by Buyer with respect thereto,based on a five(5) all other applicable laws, regulations, laws, treaties, and agreements year amortization schedule. THE FOREGOING INDEMNIFICATION relating to the export,re-export,and import of any Item. Buyer shall not PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER export, re-export, distribute or supply any Item, directly or indirectly,to FOR, AND BUYER'S SOLE AND EXCLUSIVE REMEMDY IN (i)any country,person or entity,in each case,without first obtaining from RESPECT OF,THE CLAIMS DESCRIBED HEREIN. the U.S. government and/or other appropriate government agency any 10. SOFTWARE. With respect to any software products incorporated license required to do so lawfully;(ii)any person or organization in Cuba, in or forming a part of the Products hereunder(i.e.,firmware),Seller and Iran,North Korea,Sudan,Syria,or other country then the subject of a U.S. Buyer intend and agree that such software products are being licensed and embargo, or any person or entity considered a part of the government of not sold, and that the words "purchase", "sell" or similar or derivative any such country;or(iii)any person or entity who is involved in improper words are understood and agreed to mean "license", and that the word development or use of nuclear weapons, or of chemical/biological "Buyer"or similar or derivative words are understood and agreed to mean weapons (CBW) or missiles, or in terrorist activities. Buyer shall "licensee". Notwithstanding anything to the contrary contained herein, cooperate fully with Seller in any official or unofficial audit or inspection Seller or its licensor,as the case may be,retains all rights and interest in related to applicable export or import control laws or regulations,and shall software products provided hereunder. Seller hereby grants to Buyer a indemnify and hold Seller harmless from, or in connection with, any royalty-free, non-exclusive, nontransferable license, without power to violation of this Section by Buyer or its employees, consultants, agents sublicense, to use software licensed hereunder solely for Buyer's own and/or representatives. internal business purposes on its hardware Products and to use the related 13. SUPPORT PLAN TERMS AND CONDITIONS. documentation solely for Buyer's own internal business purposes. This A. General. In the event Buyer purchases a Support Plan from Seller license terminates when Buyer's lawful possession of the hardware under this Agreement, Seller agrees to maintain and/or repair those Products provided hereunder ceases,unless earlier terminated as provided Products or instruments identified on the face hereof as covered under a herein. Buyer agrees to hold in confidence and not to sell,transfer,license, Support Plan ("Covered Equipment") in a manner consistent with the loan or otherwise make available in any form to third parties the software specifications and entitlements included in the purchased Support Plan as products and related documentation provided hereunder. Buyer may not specified by Seller on the face hereof,which may include various levels of disassemble, decompile or reverse engineer, copy, modify, enhance or service at the Buyer's site(s) and/or Seller's Depot Repair locations and otherwise change or supplement the software products provided hereunder are purchased separate from the original Product Warranty above (the without Seller's prior written consent. Seller will be entitled to terminate "Support Service(s)"). The Support Services will only be valid for 3 Thermo Fisher S C I E N T I F I C TERMS AND CONDITIONS OF SALE FOR PRODUCTS AND SERVICES Covered Equipment within the Region covered by the Plan (e.g. 48 characteristics. Any Buyer requests to modify or add devices or contiguous U.S.), Monday through Friday (excluding Seller's holidays) accessories to Covered Equipment that are not manufactured by Seller are during the hours of 8:00 a.m.to 5:00 p.m. local standard time("Normal outside the scope of the Support Plans and covered Support Services. Hours")during the term of the Agreement.The Covered Equipment must G. Support Services Warranty: Seller's sole obligation under any be operated according to the manufacturer's supplied instructions, Support Plan is to provide the Support Services in a workmanlike manner including without limitation the Operator's Manual(s)and any malfunction in accordance with the entitlements of the Support Plan purchased by must be promptly reported to Seller. Support Service calls requested Buyer hereunder. SELLER MAKES NO OTHER WARRANTIES FOR outside of Normal Hours or for any non-Covered Equipment or for SUPPORT SERVICES PROVIDED UNDER A SUPPORT PLAN, services not included in the Support Plan will be billed at Seller's standard EXPRESS OR IMPLIED, AND DISCLAIMS ALL WARRANTIES rates for Technical Support in effect at the time of Buyer's request. Seller INCLUDING,BUT NOT LIMITED TO,IMPLIED WARRANTIES OF reserves the exclusive right to determine the assignment of its employees MERCHANTABILITY AND FITNESS FOR A PARTICULAR in the performance of Support Services. PURPOSE AND ANY OTHER OBLIGATIONS OR LIABILITIES B. Term. (a)The Support Plan will begin and remain effective for the WHETHER IN CONTRACT, WARRANTY, NEGLIGENCE OR period of time stated on the face hereof("Term").To renew the Support OTHERWISE. Plan, Buyer must sign a Renewal Service Agreement accompanied by a H. Support Plan Exclusions:The following occurrences are not covered purchase order prior to the expiration of the current Term ("Renewal"), by any Support Plan purchased by Buyer from Seller under this which shall also be subject to the terms and conditions of this Agreement. Agreement: Either party may terminate a Support Plan for any/no reason by providing (a) Covered Equipment malfunctions caused by any of the following at least thirty(30) days written notice to the other party. Seller will use abnormal conditions; and if Seller performs Support Services as a commercially reasonable efforts to stop work and to incur no additional result thereof, Seller will invoice Buyer at Seller's standard billable expenses. Regardless, if a Support Plan is cancelled, Seller will charge rates for service,travel or move,labor and parts:(i)Shipping damage Buyer for the total price of Services actually performed and expenses incurred en route to Buyer's site or any subsequent transport thereafter; actually and reasonably incurred in servicing the covered equipment under (ii) Force Majeure events, including for example, floods, lightning, the underlying Support Plan from its effective date until the cancellation earthquake, tornado, hurricane or fire, bombing, terrorism, armed date or the prorated price of the underlying Support Plan from its effective conflict, malicious mischief, sabotage or other such natural or date until the cancellation date,whichever is greater,plus fifteen percent manmade disasters; (iii) Physical abuse, misuse, sprinkler damage, (15%)of the total fee paid for the underlying Support Plan. In the event electrical surge or abnormal power variation; (iv) Repairs, Buyer prepaid the Support Plan fees in full and a credit balance exists for maintenance, or modifications made by anyone other than Seller's the underlying Support Plan, Seller will provide a credit or refund the trained personnel or without Seller's supervision and/or approval;and amount remaining to Buyer. (v) Relocation and reinstallation of Covered Equipment are not C. Pricing and Pricing Assumptions. Except as otherwise agreed in covered under the Support Plan; however, upon request Seller, will writing, the annual charge for each Renewal will be Thermo Fisher's supervise the removing, crating, relocation and reinstallation of its standard support plan rates in effect at the start of the Renewal. All products at Seller's standard billable rates for service,travel or move, Support Plan pricing is based on the assumption that the Covered labor and parts. Equipment operates in accordance with product specifications as of the (b)Maintenance or replacement of media (i.e., floppy disks, printer coverage start date;therefore,prior to the start of each Term and Renewal, supplies,etc.)whatever the reason for loss,failure or damage; Seller reserves the right to verify and correct the condition of the Covered (c) Servicing of material or instruments manufactured by anyone other Equipment and invoice Buyer at Seller's current billable rates for any than Seller,including third-party material or instruments purchased for Support Services deemed reasonably necessary to bring the Covered engineering specials; Equipment into good.operating condition. Notwithstanding the above, (d) Beta-site support; Seller agrees to waive its right to bill the Buyer for bringing the Covered (e) Service calls made to train operators;and/or Equipment into good operating condition if there is no lapse between the (f) Service calls made as a result of Buyer-identified areas of end date of the current Support Plan Term and the beginning of any responsibility, i.e. malfunctions related to Buyer's site conditions, Renewal. utilities and/or facilities (power, water, temperature, humidity, D. Parts and Consumables:The Support Plan level defines when and if vibration, dust, etc.) or site computer/data network problems or the cost of parts is included under the Support Plan.Notwithstanding the integrity. foregoing, the cost for parts that are consumed in the normal and usual I. Baer Responsibilities:Buyer will give Seller's personnel reasonable operation of the Covered Equipment including,but not limited to,sample access to the Covered Equipment whenever Support Service is required. preparation and analysis, consumables, paper, ink cartridges, ribbons, Buyer will cooperate with Seller's personnel so that Support Services can pens,lamps and/or data media are not covered under any Support Plan. be performed efficiently and without interruption.Buyer will permit Seller E. Key Operator: Buyer will designate a key operator of Covered to use of Buyer's equipment,including Covered Equipment,that Seller's Equipment who can describe instrument malfunctions to Seller's service personnel deem necessary to perform the Support Services.Buyer is solely representatives by telephone and who is qualified to perform simple responsible for the procurement, installation, maintenance and fees adjustments and corrections to the Covered Equipment as requested by associated with all third party communication equipment and media as Seller's service representatives. Buyer's failure to designate a key needed for the performance of Support Service under the Support Plan operator or to perform or to have an authorized representative perform the including, but not limited to, telephone and equipment for remote routine maintenance specified in the Covered Equipment's instructions or transmission of data. Owner's Manual may result,at Seller's option,in Buyer being invoiced at 14. INSURANCE. For the Term of a Support Plan and/or for the Seller's standard Technical Support rates to provide such non-covered provision of on-site Services purchased hereunder, as applicable, Seller services. agrees to maintain and carry liability insurance in amounts set forth below F. Equipment Modification: Seller reserves the right to make any with insurance companies rated B+or better by"BEST"rating services. changes in the design or construction of Seller's Products without Insurance includes(a)commercial general liability insurance for a limit of incurring any obligation to make any updates or changes whatsoever in the US$2,000,000(two million)for each occurrence and US$4,000,000(four Covered Equipment under the Support Plan.Buyer agrees to allow Seller, million) in the aggregate, (b) Statutory workers' compensation and at its expense and option, to make retrofits or design changes which employer's liability insurance for a limit of US$1,000,000(one million), improve product reliability, but do not change its performance (c)Automobile liability of US$2,000,000(two million)and(d)Umbrella 4 Thermo Fisher S C I E N T I F I C TERMS AND CONDITIONS OF SALE FOR PRODUCTS AND SERVICES coverage of US$5,000,000(five million). No policy will include a waiver Product training to Buyer or its employees,or(II)samples of Products to of subrogation. Upon request from Buyer related to applicable Services, Buyer for distribution to patients of Buyer. Buyer agrees to distribute any Seller will provide to Buyer a certificate of insurance using the standard such samples to patients for patient use or,if not so distributed,to return ACORD form to evidence the insurance coverage required herein. them to Seller. Buyer may not use the samples to provide care to patients 15. MEDICARE/MEDICAID REPORTING REQUIREMENTS. If and must not bill any patients or third party payers when Buyer dispenses Buyer is a recipient of Medicare/Medicaid funds,Buyer acknowledges that the samples. 6) Seller hereby rejects and disclaims any rights of Buyer it has been informed of and agrees to fully and accurately account for,and contained,or obligations imposed upon Seller,in any document provided, report on its applicable cost report,the total value of any discount,rebate referenced or otherwise submitted by Buyer,in each case,that Seller has or other compensation paid hereunder in a way that complies with all not expressly included in this Agreement or a writing manually executed applicable federal, state and local laws and regulations which establish by Seller(including,without limitation,any rights of Buyer in respect of `Safe Harbor" for discounts. Buyer may make written request for designs, specifications, source code or intellectual property, owned, additional information from Seller as needed to satisfy Buyer's reporting created, developed or licensed, by Seller; any rights to items or services requirements. Buyer acknowledges that agreement to such reporting not specifically identified in Seller's quotation; any audit rights or requirement was a condition precedent to Seller's agreement to provide financial offset rights of Buyer; any penalties or liquidated damages Products and that Seller would not have entered into this Agreement had imposed upon Seller; any obligation by Seller to comply with Health Buyer not agreed to comply with such obligations. Insurance Portability and Accountability Act of 1996 (as amended), 16. MISCELLANEOUS. (a)Buyer may not delegate any duties or Current Good Manufacturing Practice regulations (as amended), the assign any rights or claims hereunder without Seller's prior written requirements, as amended, of the Customs-Trade Partnership Against consent, and any such attempted delegation or assignment shall be void. Terrorism or any code of conduct, quality program,information security (d)In the event that any one or more provisions contained herein shall be program, background or drug screening program or other guidelines, held by a court of competent jurisdiction to be invalid, illegal or programs or policies,in each case,promulgated or required by Buyer;any unenforceable in any respect, the validity, legality and enforceability of obligation that Seller comply with any law that, under law, would not the remaining provisions contained herein shall remain in full force and otherwise apply to Seller in respect of the transaction(s) contemplated effect, unless the revision materially changes the bargain. (e) Seller's hereby;any right of Buyer to withhold all,or any portion,of the purchase failure to enforce,or Seller's waiver of a breach of,any provision contained price of any products or services provided hereunder for any period of herein shall not constitute a waiver of any other breach or of such time;any right of Buyer,itself or through any third party,to remediate any provision. (/) Unless otherwise expressly stated on the Product or in the defects in, replace or re-perform, any products or services provided documentation accompanying the Product,software and/or Services,they hereunder at Seller's cost or expense;any obligation of Seller to waive,or are not approved medical devices and are intended by Seller to be for require its insurers to waive, any rights of subrogation;any obligation of "Research Use Only" as defined by the U.S. Food and Drug Seller that would impair, restrict or prohibit Seller's ability to freely Administration regulations and is not to be used for any illegal or conduct any business with any person or in any geography or market;any unapproved regulatory purposes, including without limitation, in vitro early-payment, or other, discount; any obligation of Seller to maintain a diagnostic uses, ex vivo or in vivo therapeutic uses, or any type of supply of spares, or otherwise make any services available, for any consumption by or application to humans or animals. (g)Seller agrees not particular period of time;any representation,warranty or other obligation to knowingly disclose any confidential information or data obtained by it of Seller to provide pricing comparable to, or more favorable than, the during the performance of Services when such information or data is pricing that Seller provides to others;any restriction of,or prohibition on, clearly identified in writing by Buyer as confidential. (h) Any notice or Seller's ability to modify, change or discontinue any of its products, communication required or permitted hereunder must be in writing and processes or services;or any waiver by Seller of any right to enforce any shall be deemed received when personally delivered,upon delivery by any of the terms hereof). internationally recognized carrier such as Federal Express or similar overnight delivery service, or three(3)business days after being sent by certified mail,postage prepaid,to a party at the address specified herein or at such other address as either party may from time to time designate to the other. (i) Seller may, in its sole discretion, provide (1) applicable BU SELLER By Chap t26,02113:48 CDT) By: p /J Print Name: Jesus J. Chapa PrintName: Dawn Konieczk/Jo Print Title: Deputy City Manager Print Title: Contract Specialist Date: Oct 26,2D21 Date: 10/21/2021 Initial here t0 indicate Buyer's agreement to automatically apply the TERNIS AND CONDITIONS OF SALE FOR PRODUCTS AND SERVICE to all future orders of Products and Services from Seller,whether or not the Agreement is referenced on Seller's quote or Buyer's Purchase Orders,for (write#of years)from later date of the parties'signature,or until either party provides written notice that this Agreement is terminated. 5