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END USER TERMS & CONDITIONS

Label/Sticker Requirements

 

Label/Sticker for Luminex Instrument:

 

By opening the packaging containing this unit of Luminex instrumentation or using this unit of Luminex Instrument in any manner, you are consenting and agreeing to be bound by the following terms and conditions and the terms and conditions set forth in the End User License Agreement for the Luminex software included with this unit. You are also agreeing that all such terms and conditions constitute a legally valid and binding contract that is enforceable against you. If you do not agree to all of such terms and conditions, you must promptly return this unit of Luminex instrumentation for a full refund prior to using it in any manner.

 

No rights or licenses under any of Luminex Corporation’s (“Luminex”) patents are granted by or shall be implied from the sale of this unit of Luminex Instrument or license of Luminex software to you, the purchaser, and you do not receive any right under Luminex’s patent rights by virtue of your purchase of Luminex Instrument or license of Luminex software. You agree that the Luminex Instrument and Luminex software are sold only for use with fluorescently labeled microsphere beads authorized by Luminex and you may obtain a royalty-free license under Luminex’s patents, if any, to use this unit of Luminex Instrument with fluorescently labeled microsphere beads authorized by Luminex by purchasing beads authorized by Luminex and registering this unit of Luminex Instrument with Luminex dealer, in accordance with the instructions accompanying the Luminex Instrument. You agree not to reverse engineer the Luminex Instrument or any such beads.

 

Label License/Sticker for Assay Product:

 

By opening the packaging containing this Assay Product (which contains fluorescently labeled microsphere beads authorized by Luminex Corporation) or using this Assay Product in any manner, you are consenting and agreeing to be bound by the following terms and conditions. You are also agreeing that the following terms and conditions constitute a legally valid and binding contract that is enforceable against you. If you do not agree to all of the terms and conditions set forth below, you must promptly return this Assay Product for a full refund prior to using it in any manner.

 

You, the customer, acquire the right under Luminex Corporation’s patent rights, if any, to use this Assay Product or any portion of this Assay Product, including without limitation the microsphere beads contained herein, only with Luminex Corporation’s fluorescent analytical test instrumentation marketed under the name Luminex Instrument.

 

License Agreement for Luminex Instrument Software:

 

By opening the packaging containing a unit of Luminex Instrument or using such unit in any manner, you are consenting and agreeing to be bound by the terms and conditions set forth in the following End User License Agreement (EULA). You are also agreeing that the EULA constitutes a legally valid and binding contract that is enforceable against you. If you do not agree to all of the terms and conditions in the EULA, you must promptly return the related unit of Luminex Instrument for a full refund prior to using it in any manner.

 

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END USER LICENSE AGREEMENT (EULA) FOR USE OF LUMINEX SOFTWARE

 

This Luminex End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity, also referred herein as “you”) the end user and Luminex Corporation and its affiliates (collectively, “Luminex”) regarding the use of Luminex or third party software product provided to you by Luminex or its authorized reseller, which includes computer software, scripts, algorithms, and online or electronic documentation and may include associated media and printed materials (if any) (“SOFTWARE”). The terms also apply to any updates, supplements, web content or Internet-based services, such as remote access.

 

BY USING, INSTALLING, OR ACCESSING THE SOFTWARE, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE, INSTALL, AND/OR ACCESS THE SOFTWARE. INSTEAD, RETURN IT TO LUMINEX OR THE LUMINEX AUTHORIZED RESELLER FROM WHICH YOU PURCHASED OR OBTAINED THE SOFTWARE (IF APPLICABLE, FOR A REFUND OR CREDIT). IF YOU COMPLY WITH THESE LICENSE TERMS, YOU HAVE THE RIGHTS TO USE THE SOFTWARE AS SPECIFICALLY SET FORTH BELOW.

 

  1. OVERVIEW. The SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE is licensed, not sold.

 

  1. ADDITIONAL LICENSING REQUIREMENTS AND/OR USE RIGHTS.

     

    • Trial and Conversion. Some or all of the SOFTWARE may be licensed on a trial basis. Your rights to use trial SOFTWARE are limited to the trial period. The trial SOFTWARE and length of the trial period are set forth during the activation process or otherwise set forth in a written agreement between Luminex and you. The SOFTWARE may be used for evaluation purposes only during the trial period and not for any commercial use, including without limitation to any diagnostic use. You may have the option to convert your trial rights to perpetual rights. Conversion options will be presented to you at the expiration of your trial period.
    • Activation. For certain SOFTWARE, you can activate the SOFTWARE by obtaining a license key provided by Luminex Technical Support at support@luminexcorp.com or 1-877-785-2323 or 1-512-381-4397.
    • Branding. You may only add additional branding or other graphics to SOFTWARE with Luminex’s express written consent. For certain SOFTWARE, Luminex may permit you to upload your logo onto the SOFTWARE pursuant to the instructions and terms provided by Luminex.
    • Upgrades. You may only obtain updates or upgrades for the SOFTWARE from Luminex Technical Support at orders@luminexcorp.com or authorized resellers. For certain SOFTWARE, Luminex may permit downloading updates or upgrades from a Luminex authorized Website. For more information on obtaining updates from authorized resellers, see http://www.luminexcorp.com.
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  3. GRANT OF LICENSE. Subject to the terms and conditions of this EULA, Luminex hereby grants to you a nonexclusive, non-transferable, non-assignable license (without right to sublicense) under Luminex’s copyrights and trade secrets to use the SOFTWARE on a single computer running with a single unit of a specific model of Luminex instrument, as such model is identified on the packaging included with the SOFTWARE. For certain SOFTWARE that is not integrated into a Luminex instrument and provided on a separate medium and/or does not require activation, you may make one (1) copy of the SOFTWARE for backup or archival purposes only. For some of such SOFTWARE, you may also install the SOFTWARE on up to two (2) additional computers for purposes of performing ancillary tasks (i.e. preparing templates/protocols, performing further analysis or re-running previous data), provided such computers are at a single location and are NOT connected with a Luminex instrument. In addition, you may purchase the right to use the SOFTWARE on additional computers, as agreed to in writing with Luminex or its authorized reseller, for purposes of performing ancillary tasks (i.e. preparing templates/protocols, performing further analysis or re-running previous data), provided such computers are at a single location and are NOT connected with a Luminex instrument. Although no rights or licenses under any of Luminex’s patents are granted by or shall be implied from the license of the SOFTWARE or the sale of a Luminex instrument to you, the purchaser, you may obtain a license under Luminex’s patents, if any, to use a Luminex instrument with microsphere beads or cassettes, as applicable, authorized by Luminex, or with kits developed, manufactured, and distributed by licensees authorized in writing by Luminex, by purchasing such beads, cassettes, or kits from Luminex or an authorized Luminex reseller or licensee.
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  5. RESTRICTIONS

     

    • SOFTWARE must only be installed and operated on a single computer running with or in connection with a Luminex instrument, as set forth above.
    • You may not use this SOFTWARE for any commercial purpose, including in the performance of testing services, unless expressly agreed to in writing by Luminex or as authorized in writing by Luminex through an authorized reseller of the SOFTWARE.
    • You may only use the SOFTWARE with microspheres or cassettes, as applicable, authorized by Luminex or with kits developed, manufactured and distributed by licensees authorized in writing by Luminex.
    • You must maintain all proprietary notices on all copies of the SOFTWARE.
    • You may not distribute copies of the SOFTWARE to third parties.
    • You may not reverse-engineer, decompile, disassemble, or otherwise attempt to derive source code from the SOFTWARE.
    • You may not copy (other than one backup or archival copy), sell, distribute, sublicense, rent, lease, transfer or grant any rights in or to all or any portion of the SOFTWARE.
    • You must comply with all applicable laws and regulations, including Food and Drug Administration requirements, regarding the use of the SOFTWARE.
    • You may not modify or prepare derivative works of the SOFTWARE, including modifying any branding or graphics.
    • You may not use the SOFTWARE in a computer-based service business, in the operation of a service bureau, or otherwise for the benefit of any third party, or publicly display visual output of the SOFTWARE.
    • You may not transmit the SOFTWARE over a network, by telephone, or electronically by any means.
    • You acknowledge your obligation to inform your employees, consultants, and associates who will be using the SOFTWARE, of Luminex’s labeling literature, warnings, instructions, notices, and other materials regarding proper use that Luminex has provided or may hereafter provide to you.

     

  6. TERM AND TERMINATION. Your rights under this EULA are effective until termination. You may terminate this EULA at any time by destroying the SOFTWARE, including all computer programs and documentation, and erasing any copies residing on your computer equipment. Luminex may terminate this EULA upon thirty (30) days written notice to you. Your rights under this EULA automatically terminate without further action on the part of Luminex if you do not comply with any of the terms or conditions of this EULA. Upon any termination of this EULA, you agree to destroy the SOFTWARE and erase any copies residing on your computer equipment.
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  8. RIGHTS IN SOFTWARE. All rights and title in and to the SOFTWARE and any copies thereof are owned by Luminex or its suppliers. This EULA is not a sale and does not transfer to you any title or ownership interest in or to the SOFTWARE or any patent, copyright, trade secret, trade name, trademark or other intellectual property right therein. You shall not remove, alter, or obscure any proprietary notices contained on or within the SOFTWARE and shall reproduce such notices on any back-up copy of the SOFTWARE. All title and intellectual property rights in and to the content which may be accessed through use of the SOFTWARE is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content.
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  10. EXPORT RESTRICTIONS. You agree that you will not export or re-export the SOFTWARE to any country, person, entity, or end user subject to U.S.A. export restrictions or in a manner that is contrary to any local, provincial, state, national, international, and foreign laws or regulations applicable to you. You hereby warrant no state or federal agency has suspended, revoked, or denied your export privileges.
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  12. NO WARRANTY. THE SOFTWARE IS LICENSED “AS IS, WHERE IS.” ANY USE OF THE SOFTWARE IS AT YOUR OWN RISK WITHOUT WARRANTY OF ANY KIND. THE SOFTWARE IS PROVIDED FOR USE ONLY WITH LUMINEX PRODUCTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LUMINEX AND ITS SUPPLIERS DISCLAIM ALL CONDITIONS, TERMS, REPRESENTATIONS, AND WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY.
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  14. LIMITATION OF LIABILITY. IN NO EVENT SHALL LUMINEX, ITS AFFILIATES, LICENSORS, AUTHORIZED DISTRIBUTORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR THE RESULTS OF THE USE OF THE SOFTWARE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, AND EVEN IF LUMINEX, ITS AFFILIATES, LICENSORS, AUTHORIZED DISTRIBUTORS, OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT THE “AS IS” AND LIMITATION ON LIABILITY PROVISIONS CONTAINED IN THIS AGREEMENT CONSTITUTE MATERIAL TERMS OF THE CONTRACTUAL BARGAIN BETWEEN THE PARTIES AND THAT NO LICENSE WOULD BE PROVIDED IN THE ABSENCE OF SUCH PROVISIONS.
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  16. YOUR REPRESENTATION AND INDEMNITY. You represent and warrant that you shall use the Software in accordance with the terms of this Agreement, and that any such use of the Software will not violate any law, regulation, judicial order or injunction. You agree to defend, indemnify and hold Luminex and its authorized resellers and licensors, and each of their respective officers, directors, employees, agents, successors and assigns harmless from and against any loss, damage, claim, cost, expense or other liability (including, without limitation, legal fees and amounts reasonably paid in settlement) suffered or incurred by Luminex as a result of any claim or cause of action by a third party arising out of, based upon or relating to: (i) your use of the SOFTWARE, (ii) your use of or reliance on any evaluation, analytic results or other data derived from the SOFTWARE, or (iii) any breach by you or any of your representatives of the terms of this Agreement.
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  18. MISCELLANEOUS. This EULA is governed by the laws of the State of Texas, U.S.A., without reference to conflicts of laws principles. You shall not assign or sublicense or otherwise transfer the rights or license granted hereunder, by agreement or by operation of law, without the prior written consent of Luminex, and all assignments in violation of this prohibition shall be null and void. This EULA is the complete and exclusive agreement of Luminex and you and supersedes all other communications, oral or written, relating to the subject matter hereof. No change to this EULA shall be valid unless in writing and signed by the party against whom enforcement is sought. The waiver or failure of Luminex or you to exercise in any respect any right or rights provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this EULA is held unenforceable, the remainder of this EULA will continue in full force and effect.
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  20. LANGUAGE The parties hereto confirm their express wish that this Agreement, as well as all other documents related hereto, including notices, be drawn up in the English language only and declare themselves satisfied therewith; les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents qui s’y rattachent, y compris tout avis, soient rédigés en langue anglaise et s’en déclarent satisfaits.

 

89-30000-00-419 Rev. D

 

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STANDARD TERMS AND CONDITIONS FOR USE OF INSTRUMENT PRODUCT

 

By opening the packaging containing this instrument product (“Product”) or by using such Product in any manner, you are consenting and agreeing to be bound by the following terms and conditions. You are also agreeing that the following terms and conditions constitute a legally valid and binding contract that is enforceable against you. If you do not agree to all of the terms and conditions set forth below, you must promptly return the Product for a full refund prior to using them in any manner.

 

  1. Acceptance — ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON BUYER’S ASSENT THERETO. NO VARIATION OF THESE TERMS AND CONDITIONS SHALL BE BINDING UPON LUMINEX CORPORATION (“LUMINEX”) UNLESS AGREED TO IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF LUMINEX.
    For purposes of this agreement, “Seller” shall mean either Luminex, if the Product is purchased or otherwise acquired directly from Luminex, or a Luminex authorized reseller. Buyer, by accepting the Product, shall be deemed to have assented to the terms and conditions set forth herein, notwithstanding any terms contained in any prior or later communications from Buyer and whether or not Seller shall specifically or expressly object to any such terms.
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  3. Warranties – THIS WARRANTY IS APPLICABLE FOR PARTS AND SERVICE FOR LUMINEX INSTRUMENTS OR OTHERWISE ACQUIRED PURCHASED DIRECTLY FROM LUMINEX BY BUYER AND ONLY TO THE EXTENT SUCH INSTRUMENTS ARE LOCATED IN THE COUNTRIES LISTED ON LUMINEX’S WEBSITE LOCATED AT WWW.LUMINEXCORP.COM/COVERAGECOUNTRIES (“WARRANTY COVERAGE COUNTRIES”). LUMINEX MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS SOLD, DISTRIBUTED, LOCATED OR USED OUTSIDE OF THE WARRANTY COVERAGE COUNTRIES. PRODUCTS SOLD OUTSIDE OF THE WARRANTY COVERAGE COUNTRIES ARE SOLD ONLY ON AN “AS IS, WHERE IS” BASIS. NOTWITHSTANDING THE FOREGOING, LUMINEX SHALL PROVIDE BUYER A WARRANTY ON FIELD SERVICE PARTS (“FS-PARTS”) PROCURED FROM LUMINEX FOR MAINTENANCE OF LUMINEX INSTRUMENTS IN ALL COUNTRIES IN THE WORLD AND PER THE TERMS AND CONDITIONS HEREIN. TO THE EXTENT THAT THE FOREGOING DISCLAIMERS ARE INVALID OR UNENFORCEABLE UNDER THE LAWS OF ANY JURISDICTION, THE WARRANTY, DISCLAIMER, LIMITATION OF LIABILITY AND OTHER PROVISIONS SET FORTH BELOW SHALL THEREUPON BE EFFECTIVE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
    Notwithstanding Buyer’s acceptance thereof, if Product is purchased or otherwise acquired directly from Luminex, Luminex warrants that for a period of twelve (12) months from date of delivery that: (i) the Product shall conform in all material respects with the Product Specifications provided by Luminex with the Product, and (ii) the FS-PARTS for the Products are free from defects in materials and workmanship. The warranty provided herein specifically excludes any software or hardware not provided by Luminex. If Product is purchased from a Luminex authorized reseller, any warranty obligations shall be provided in writing directly by such Luminex authorized reseller to Buyer. THIS WARRANTY IS EXCLUSIVE AND LUMINEX MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Seller’s warranties made in connection with this sale shall not be effective if Seller has determined, in its sole discretion, that Buyer has misused the Product in any manner, has failed to use the Product in accordance with industry standards or practices, or has failed to use the Product in accordance with instructions, if any, furnished by Seller.
    BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO PRODUCT PROVED TO SELLER’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPAIR OR REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN SELLER’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH SELLER’S INSTRUCTIONS BELOW. NEITHER SELLER NOR LUMINEX NOR ANY OF ITS AFFILIATES SHALL IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCT, EVEN IF SELLER OR LUMINEX OR ITS AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT, INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER’S GROSS NEGLIGENCE.
    In the event that the Product or an FS-PART fails to conform to the warranty set forth herein, during the warranty period: (i) Buyer shall notify Luminex in a timely manner in writing that such Product or FS-PART, as applicable, failed to conform and shall furnish a detailed explanation of any alleged nonconformity; (ii) Buyer, at its expense, will contact either Luminex or a Luminex trained service engineer to assess the issue and identify the defective Product or FS-PART, as applicable; and (ii) at Luminex’s option and election, Buyer shall either return such nonconforming Product or FS-PART to Luminex (at its manufacturing facility or at a place designated by Luminex) or destroy such Product or FS-PART, as applicable, and provide Luminex with written certification of destruction. In the event that a Product or an FS-PART, as applicable, is returned to Luminex’s manufacturing facility, Luminex may analyze such Product or FS-PART, as applicable, for nonconformities. In the event that Luminex determines that such Product or FS-PART, as applicable, is conforming, the Product or FS-PART, as applicable, shall be shipped to Buyer and Buyer shall be responsible for the payment for such Product or FS-PART, as applicable, and related shipping charges. In the event that Luminex determines that such Product or FS-PART, as applicable, is nonconforming, Luminex shall be responsible for the payment for such Product or FS-PART, as applicable, and related shipping charges. Except as expressly provided herein, Buyer shall not have the right to return a Product or FS-PART, as applicable, to Luminex without Luminex’s prior written consent.
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  5. Buyer’s Use of Product — Buyer shall not use this Product for any commercial purpose, including without limitation performance of testing services, unless expressly agreed to in writing by Luminex or as specifically authorized by Luminex through a Luminex authorized reseller. Buyer agrees that no rights or licenses under Luminex’s patents shall be implied from the sale of the Product, except as expressly provided herein or as specifically agreed to in writing by Luminex, and Buyer does not receive any right under Luminex’s patent rights hereunder. Buyer acknowledges and agrees that the Product is sold and licensed only for use with Luminex’s beads or cassettes, as applicable. For quality control purposes, Buyer shall not use the product with any microspheres, sheath fluid, or cassettes other than the beads, sheath fluid, and cassettes authorized by Luminex. Buyer further acknowledges that the Product has not received clearance from the United States Food and Drug Administration or other federal, state or local regulatory agencies and has not been tested by Seller or Luminex for safety or efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated on the Product label or in Seller’s technical specifications or material data sheets furnished to Buyer. Buyer expressly represents and warrants to Seller that Buyer will use the Product in accordance with the Product label, if applicable, and will properly test and use any Product in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with the United States Food and Drug Administration and all applicable domestic and international laws and regulations, now and hereinafter enacted.
    BUYER HEREBY GRANTS TO LUMINEX A NONEXCLUSIVE, WORLDWIDE, UNRESTRICTED, ROYALTY-FREE, FULLY PAID-UP LICENSE, WITH THE RIGHT TO GRANT AND AUTHORIZE SUBLICENSES, UNDER ANY AND ALL PATENT RIGHTS IN INVENTIONS COMPRISING MODIFICATIONS, EXTENSIONS, OR ENHANCEMENTS MADE BY BUYER TO THE PRODUCT OR TO THE MANUFACTURE OR USE OF THE PRODUCT (“IMPROVEMENT PATENTS”), TO MAKE, HAVE MADE, USE, IMPORT, OFFER FOR SALE OR SELL ANY AND ALL OF THE PRODUCT; EXPLOIT ANY AND ALL METHODS OR PROCESSES; AND OTHERWISE EXPLOIT IMPROVEMENT PATENTS FOR ALL PURPOSES. NOTWITHSTANDING THE FOREGOING, “IMPROVEMENT PATENTS” SPECIFICALLY EXCLUDES PATENT CLAIMS CONCEIVED AND REDUCED TO PRACTICE BY BUYER CONSISTING OF METHODS OF SAMPLE PREPARATION, THE COMPOSITION OF MATTER OF THE SPECIFIC CHEMISTRIES OF THE ASSAYS DEVELOPED BY BUYER AND METHODS OF PERFORMING THE ASSAYS (I.E., THE PROTOCOL FOR THE ASSAY).
    Buyer has the responsibility and hereby expressly assumes the risk to verify the hazards and to conduct any further research necessary to learn the hazards involved in using the Product. Buyer also has the duty to warn Buyer’s customers, employees, agents, assigns, officers, successors and any auxiliary or third party personnel (such as freight handlers, etc.) of any and all risks involved in using or handling the Product. Buyer agrees to comply with instructions, if any, furnished by Seller or Luminex relating to the use of the Product and to not misuse the Product in any manner. Buyer shall not reverse engineer, decompile, disassemble or modify the Product. Buyer acknowledges that Luminex retains ownership of all patents, trademarks, trade secrets and other proprietary rights relating to or residing in the Product and Buyer receives no rights to such intellectual property rights by virtue of its purchase of Product other than as expressly set forth herein. Buyer shall have no right to use any trademarks owned or licensed to Luminex without the express written permission of Luminex.
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  7. Buyer’s Representations, Release and Indemnity — Buyer represents and warrants that it shall use the Product in accordance with Paragraph 3, “Buyer’s Use of Product,” and that any such use of the Product will not violate any law, regulation, judicial order or injunction. Buyer agrees to release, discharge, disclaim and renounce any and all claims, demands, actions, causes of action and/or suits in law or equity, now existing or hereafter arising, whether known or unknown, against Seller and Luminex, and their respective officers, directors, employees, agents, successors and assigns (collectively the “Released Parties”), with respect to the use of the Product. Buyer agrees to indemnify and hold harmless the Released Parties from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney, accounting, expert witness, and consulting fees) that any of the Released Parties may sustain or incur as a result of any claim against such Released Party based upon negligence, breach of warranty, strict liability in tort, contract or any other theory of law or equity arising out of, directly or indirectly, the use of the Product or by reason of Buyer’s failure to perform its obligations contained herein. Buyer shall fully cooperate with the Released Parties in the investigation and determination of the cause of any accident involving the Product which results in personal injury or property damage and shall make available to the Released Parties all statements, reports, recordings and tests made by Buyer or made available to Buyer by others.
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  9. Patent Disclaimer — Neither Seller nor Luminex warrants that the use or sale of the Product will not infringe the claims of any United States or other patents covering the Product itself or the use thereof in combination with other products or in the operation of any process.

 

89-30000-00-186 Rev. E

 

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STANDARD TERMS AND CONDITIONS FOR USE OF REAGENT PRODUCT

 

By opening the packaging containing this reagent product (“Product”) or by using such Product in any manner, you are consenting and agreeing to be bound by the following terms and conditions. You are also agreeing that the following terms and conditions constitute a legally valid and binding contract that is enforceable against you. If you do not agree to all of the terms and conditions set forth below, you must promptly return the Product for a full refund prior to using them in any manner.

 

  1. Acceptance — ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON BUYER’S ASSENT THERETO. NO VARIATION OF THESE TERMS AND CONDITIONS SHALL BE BINDING UPON LUMINEX CORPORATION (“LUMINEX”) UNLESS AGREED TO IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF LUMINEX.
    For purposes of this agreement, “Seller” shall mean either Luminex, if the Product is purchased directly from Luminex, or a Luminex authorized reseller. Buyer, by accepting the Product shall be deemed to have assented to the terms and conditions set forth herein, notwithstanding any terms contained in any prior or later communications from Buyer and whether or not Seller shall specifically or expressly object to any such terms.
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  3. Warranties — Notwithstanding Buyer’s acceptance of thereof, if Product is purchased directly from Luminex, Luminex warrants that until the earlier of (a) ninety (90) days from the date of delivery or (b) the expiration date set forth on the Product label, the Product shall conform in all material respects with the Product specifications provided by Luminex with the Product. If Product is purchased from a Luminex authorized reseller, any warranty obligations shall be provided in writing directly by such Luminex authorized reseller to Buyer. THIS WARRANTY IS EXCLUSIVE AND LUMINEX MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. Seller’s warranties made in connection with this sale shall not be effective if Seller has determined, in its sole discretion, that Buyer has misused the Product in any manner, has failed to use the Product in accordance with industry standards or practices, or has failed to use the Product in accordance with instructions, if any, furnished by Seller.
    BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO PRODUCT PROVED TO SELLER’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN SELLER’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH SELLER’S INSTRUCTIONS. NEITHER SELLER NOR LUMINEX NOR ANY OF ITS AFFILIATES SHALL IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCT, EVEN IF SELLER OR LUMINEX OR ITS AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT, INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER’S GROSS NEGLIGENCE.
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  5. Buyer’s Use of Product — Buyer shall not use this Product for any commercial purpose, including without limitation performance of testing services, unless expressly agreed to in writing by Luminex or as specifically authorized by Luminex through a Luminex distributor. In order to maintain the quality of the Product, Buyer may use this Product only once on a single use basis and shall not reuse this Product under any circumstances. Buyer agrees that no rights or licenses under Luminex’s patents shall be implied from the sale of the Product, except as expressly provided herein or as specifically agreed to in writing by Luminex, and Buyer does not receive any right under Luminex’s patent rights hereunder. Buyer acknowledges and agrees that the Product is sold and licensed only for use with Luminex’s instrumentation. Buyer further acknowledges that the Product has not received clearance from the United States Food and Drug Administration or other federal, state or local regulatory agencies and has not been tested by Seller or Luminex for safety or efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated on the Product label or in Seller’s technical specifications or material data sheets furnished to Buyer. Buyer expressly represents and warrants to Seller that Buyer will use the Product in accordance with the Product label, if applicable, and will properly test and use any Product in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with the United States Food and Drug Administration and all applicable domestic and international laws and regulations, now and hereinafter enacted.
    BUYER HEREBY GRANTS TO LUMINEX A NONEXCLUSIVE, WORLDWIDE, UNRESTRICTED, ROYALTY-FREE, FULLY PAID-UP LICENSE, WITH THE RIGHT TO GRANT AND AUTHORIZE SUBLICENSES, UNDER ANY AND ALL PATENT RIGHTS IN INVENTIONS COMPRISING MODIFICATIONS, EXTENSIONS, OR ENHANCEMENTS MADE BY BUYER TO THE PRODUCT OR TO THE MANUFACTURE OR USE OF THE PRODUCT (“IMPROVEMENT PATENTS”), TO MAKE, HAVE MADE, USE, IMPORT, OFFER FOR SALE OR SELL ANY AND ALL OF THE PRODUCT; EXPLOIT ANY AND ALL METHODS OR PROCESSES; AND OTHERWISE EXPLOIT IMPROVEMENT PATENTS FOR ALL PURPOSES. NOTWITHSTANDING THE FOREGOING, “IMPROVEMENT PATENTS” SPECIFICALLY EXCLUDES PATENT CLAIMS CONCEIVED AND REDUCED TO PRACTICE BY BUYER CONSISTING OF METHODS OF SAMPLE PREPARATION, THE COMPOSITION OF MATTER OF THE SPECIFIC CHEMISTRIES OF THE ASSAYS DEVELOPED BY BUYER AND METHODS OF PERFORMING THE ASSAYS (I.E., THE PROTOCOL FOR THE ASSAY).
    Buyer has the responsibility and hereby expressly assumes the risk to verify the hazards and to conduct any further research necessary to learn the hazards involved in using the Product. Buyer also has the duty to warn Buyer’s customers, employees, agents, assigns, officers, successors and any auxiliary or third party personnel (such as freight handlers, etc.) of any and all risks involved in using or handling the Product. Buyer agrees to comply with instructions, if any, furnished by Seller or Luminex relating to the use of the Product and to not misuse the Product in any manner. Buyer shall not reverse engineer, decompile, disassemble or modify the Product. Buyer acknowledges that Luminex retains ownership of all patents, trademarks, trade secrets and other proprietary rights relating to or residing in the Product and Buyer receives no rights to such intellectual property rights by virtue of its purchase of Product other than as expressly set forth herein. Buyer shall have no right to use any trademarks owned or licensed to Luminex without the express written permission of Luminex.
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  7. Buyer’s Representations, Release and Indemnity — Buyer represents and warrants that it shall use the Product in accordance with Paragraph 3, “Buyer’s Use of Product,” and that any such use of the Product will not violate any law, regulation, judicial order or injunction. Buyer agrees to release, discharge, disclaim and renounce any and all claims, demands, actions, causes of action and/or suits in law or equity, now existing or hereafter arising, whether known or unknown, against Seller and Luminex, and their respective officers, directors, employees, agents, successors and assigns (collectively the “Released Parties”), with respect to the use of the Product. Buyer agrees to indemnify and hold harmless the Released Parties from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney, accounting, expert witness, and consulting fees) that any of the Released Parties may sustain or incur as a result of any claim against such Released Party based upon negligence, breach of warranty, strict liability in tort, contract or any other theory of law or equity arising out of, directly or indirectly, the use of the Product or by reason of Buyer’s failure to perform its obligations contained herein. Buyer shall fully cooperate with the Released Parties in the investigation and determination of the cause of any accident.

 

89-30000-00-185 Rev. E

 

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STANDARD TERMS AND CONDITIONS FOR USE OF ASSAY PRODUCT

 

By opening the packaging containing this assay product or cassette (“Product”) or by using such Product in any manner, you are consenting and agreeing to be bound by the following terms and conditions. You are also agreeing that the following terms and conditions constitute a legally valid and binding contract that is enforceable against you. If you do not agree to all of the terms and conditions set forth below, you must promptly return the Product for a full refund prior to using them in any manner.

 

  1. Acceptance — ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON BUYER’S ASSENT THERETO. NO VARIATION OF THESE TERMS AND CONDITIONS SHALL BE BINDING UPON LUMINEX CORPORATION (“LUMINEX”) UNLESS AGREED TO IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF LUMINEX.
    For purposes of this agreement, “Seller” shall mean either Luminex, if the Product is purchased directly from Luminex, or a Luminex authorized reseller. Buyer, by accepting the Product shall be deemed to have assented to the terms and conditions set forth herein, notwithstanding any terms contained in any prior or later communications from Buyer and whether or not Seller shall specifically or expressly object to any such terms.
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  3. Warranties — Notwithstanding Buyer’s acceptance thereof, if Product is purchased directly from Luminex, Luminex warrants that the Product shall conform to the quantity and content stated on the label and perform in all material respects consistent with Product specifications accompanying the Product until the expiration date set forth on the Product label. If Product is purchased from a Luminex authorized reseller, any warranty obligations shall be provided in writing directly by such Luminex authorized reseller to Buyer. THIS WARRANTY IS EXCLUSIVE AND LUMINEX MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Seller’s warranties made in connection with this sale shall not be effective if Seller has determined, in its sole discretion, that Buyer has misused the Product in any manner, has failed to use the Product in accordance with industry standards or practices, or has failed to use the Product in accordance with instructions, if any, furnished by Seller.
    BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO PRODUCT PROVED TO SELLER’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN SELLER’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH SELLER’S INSTRUCTIONS. NEITHER SELLER NOR LUMINEX NOR ITS AFFILIATES SHALL IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCT, EVEN IF SELLER OR LUMINEX OR ITS AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER’S GROSS NEGLIGENCE.
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  5. Buyer’s Use of Product — Buyer agrees that no rights or licenses under Luminex’s patents shall be implied from the sale of the Product, except as expressly provided herein or as specifically agreed to in writing by Luminex, and Buyer does not receive any right under Luminex’s patent rights hereunder. Buyer acknowledges and agrees that the Product is sold and licensed only for use with Luminex’s instrumentation. In order to maintain the quality of the Product, Buyer may use this Product only once on a single use basis and shall not reuse this Product under any circumstances. Buyer further acknowledges that the Product has not received clearance from the United States Food and Drug Administration or other federal, state or local regulatory agencies and has not been tested by Seller or Luminex for safety or efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated on the Product label or in Seller’s technical specifications or material data sheets furnished to Buyer. Buyer expressly represents and warrants to Seller that Buyer will use the Product in accordance with the Product label, if applicable, and will properly test and use any Product in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with the United States Food and Drug Administration and all applicable domestic and international laws and regulations, now and hereinafter enacted.
    BUYER HEREBY GRANTS TO LUMINEX A NONEXCLUSIVE, WORLDWIDE, UNRESTRICTED, ROYALTY-FREE, FULLY PAID-UP LICENSE, WITH THE RIGHT TO GRANT AND AUTHORIZE SUBLICENSES, UNDER ANY AND ALL PATENT RIGHTS IN INVENTIONS COMPRISING MODIFICATIONS, EXTENSIONS, OR ENHANCEMENTS MADE BY BUYER TO THE PRODUCT OR TO THE MANUFACTURE OR USE OF THE PRODUCT (“IMPROVEMENT PATENTS”), TO MAKE, HAVE MADE, USE, IMPORT, OFFER FOR SALE OR SELL ANY AND ALL OF THE PRODUCT; EXPLOIT ANY AND ALL METHODS OR PROCESSES; AND OTHERWISE EXPLOIT IMPROVEMENT PATENTS FOR ALL PURPOSES. NOTWITHSTANDING THE FOREGOING, “IMPROVEMENT PATENTS” SPECIFICALLY EXCLUDES PATENT CLAIMS CONCEIVED AND REDUCED TO PRACTICE BY BUYER CONSISTING OF METHODS OF SAMPLE PREPARATION, THE COMPOSITION OF MATTER OF THE SPECIFIC CHEMISTRIES OF THE ASSAYS DEVELOPED BY BUYER AND METHODS OF PERFORMING THE ASSAYS (I.E., THE PROTOCOL FOR THE ASSAY).
    Buyer has the responsibility and hereby expressly assumes the risk to verify the hazards and to conduct any further research necessary to learn the hazards involved in using the Product. Buyer also has the duty to warn Buyer’s customers, employees, agents, assigns, officers, successors and any auxiliary or third party personnel (such as freight handlers, etc.) of any and all risks involved in using or handling the Product. Buyer agrees to comply with instructions, if any, furnished by Seller or Luminex relating to the use of the Product and to not misuse the Product in any manner. Buyer shall not reverse engineer, decompile, disassemble or modify the Product. Buyer acknowledges that Luminex retains ownership of all patents, trademarks, trade secrets and other proprietary rights relating to or residing in the Product and Buyer receives no rights to such intellectual property rights by virtue of its purchase of Product other than as expressly set forth herein. Buyer shall have no right to use any trademarks owned or licensed to Luminex without the express written permission of Luminex.
  6.  

  7. Buyer’s Representations, Release and Indemnity — Buyer represents and warrants that it shall use the Product in accordance with Paragraph 3, “Buyer’s Use of Product,” and that any such use of the Product will not violate any law, regulation, judicial order or injunction. Buyer agrees to release, discharge, disclaim and renounce any and all claims, demands, actions, causes of action and/or suits in law or equity, now existing or hereafter arising, whether known or unknown, against Seller and Luminex, and their respective officers, directors, employees, agents, successors and assigns (collectively the “Released Parties”), with respect to the use of the Product. Buyer agrees to indemnify and hold harmless the Released Parties from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney, accounting, expert witness, and consulting fees) that any of the Released Parties may sustain or incur as a result of any claim against such Released Party based upon negligence, breach of warranty, strict liability in tort, contract or any other theory of law or equity arising out of, directly or indirectly, the use of the Product or by reason of Buyer’s failure to perform its obligations contained herein. Buyer shall fully cooperate with the Released Parties in the investigation and determination of the cause of any accident involving the Product which results in personal injury or property damage and shall make available to the Released Parties all statements, reports, recordings and tests made by Buyer or made available to Buyer by others.
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  9. Patent Disclaimer — Neither Seller nor Luminex warrants that the use or sale of the Product will not infringe the claims of any United States or other patents covering the Product itself or the use thereof in combination with other products or in the operation of any process.

 

89-30000-00-187 Rev. C

 

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