CUSTOMER AGREES THAT BY PLACING AN ORDER THROUGH A BINX io REAGENT RENTAL AGREEMENT (THE “REGENT RENTAL AGREEMENT”) CUSTOMER AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THE REAGENT RENTAL AGREEMENT AND THESE REAGENT RENTAL TERMS. IF YOU ARE PLACING AN ORDER ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THE REAGENT RENTAL AGREMENT AND THESE REAGENT RENTAL TERMS AND, IN SUCH EVENT, “CUSTOMER”, “YOU” AND “YOUR” AS USED IN THESE REAGENT RENTAL TERMS SHALL REFER TO SUCH ENTITY.
THESE REAGENT RENTAL TERMS COMBINED WITH THE REAGENT RENTAL AGREEMENT, including all exhibits referenced herein (collectively, the “Agreement”), is entered into and effective as of the date referenced on the Reagent Rental Agreement entered into between Customer and binx (the “Effective Date”).
1.1Instrument. Subject to the terms of the Agreement, binx agrees to provide Customer, and Customer agrees to receive, the instrument or instruments described in the Reagent Rental Agreement (the “Instrument”) in the quantities and under the terms set forth in the Reagent Rental Agreement. binx will provide Customer with technical support and other services with respect to the Instrument as specified in Exhibit A.
1.2 Reagent Purchase. Subject to the terms of the Agreement, Customer may purchase the Reagent Products as set forth in the Reagent Rental Agreement (“Reagents”).
1.3 Payment Terms. Customer shall make all payments due under this Agreement and Reagent Rental Agreement via wire, check or Automated Clearing House (ACH) payment in accordance with instructions provided by binx. All invoiced amounts are due and payable net thirty (30) days from the date of the applicable binx invoice. Any other form of payment will be subject to binx’s approval and may result in administrative fees or surcharges. binx may assess late payment fees equal to the lesser of two percent (2%) per month or the maximum amount permitted by law on any overdue amounts. binx may place Customer orders on hold and otherwise suspend binx’s performance hereunder during any period when amounts are overdue and may refrain from shipping an Instrument until binx has received full payment for such Instrument.
1.4 Shipping Terms. The shipment terms for the Instrument and Cartridges are Ex Works (Incoterms 2010). The estimated delivery date for the initial purchased Instrument is set forth in the Reagent Rental Agreement and binx shall use reasonable efforts to meet such delivery date.
1.5 Taxes. Fees and other charges described in this Agreement do not include federal, state or local sales, use, property, excise, service, value-added, or similar taxes, or any duties, governmental licenses or permits, or similar items, now or hereafter levied or required, all of which shall be Customer’s sole responsibility. Any evidence of tax-exempt status (including direct pay permits and valid tax-exempt certificates) must be provided to binx prior to the execution of this Agreement. If binx is required to pay or otherwise be responsible for any of the taxes or other items specified above (excluding taxes on binx’s income), binx shall invoice Customer for such items, including interest and penalties. Customer shall indemnify binx for and hold binx harmless from any taxes or other items listed above (excluding taxes on binx’s income), and any related costs, interest and penalties paid or payable by binx related thereto.
1.6 License. Subject to the terms and conditions of the Agreement, binx grants Customer a nonexclusive, non-transferable license, without the right to grant sublicenses, to use the Products at the facility specified in the Reagent Rental Agreement and solely for the purposes described in the binx operator manual and instructions for use. Customer may use the software provided in connection with the Instrument only in machine-readable form. Customer shall not, and shall not permit any third party to, copy, decompile or reverse engineer the Instrument, any related software, or any Reagents, or disclose or provide any such software to any third party. binx and its licensors retain all intellectual property rights embodied in or relating to the Instrument and the Reagents and no licenses under such intellectual property are granted except for the license set forth in this Section 1.6. Customer shall use the Instrument solely in conjunction with the Reagents and other products sold or provided to Customer as set forth in the Reagent Rental Agreement (the Instrument, related software, Reagents, and other products sold or licensed pursuant to this Agreement are referred to collectively as the “Products”). binx reserves all rights not expressly granted to Customer under this Section 1.6.
1.7 Third Party Terms. If third party software or components provided with or as incorporated in the Products are subject to terms that are different from or in addition to the terms in Section 1.6 (“Third Party Terms”), binx shall provide such Third Party Terms to Customer and such terms shall apply to Customer’s use of the applicable software or component.
1.8 Certain Markings and Notices, Access. Customer shall not remove, alter or obscure any patent markings, trademarks or other branding elements, or any copyright notices or similar notices from the Instrument. Customer shall not lease, sublease, transfer, sell, or assign the Instrument without binx’s approval. Customer agrees that binx shall have access to the Instrument for purposes of collecting non-patient data that may be present on the Instrument (“Instrument Data”). Customer agrees that binx shall own all right, title and interest to such Instrument Data.
1.9 Purchase Orders. In the event of a conflict or inconsistency between the terms stated in a purchase order or other similar document used to order Products (a “Purchase Order”) and the terms of this Agreement, the terms of this Agreement shall govern. binx hereby rejects any additional terms contained in any such Purchase Order. Any Purchase Order will become valid and enforceable only when such Purchase Order has been signed by both parties. Customer may terminate or reschedule delivery dates under a signed Purchase Order only with the prior written consent of binx.
2.1 Term and Renewal. This Agreement shall continue for three (3) years after the Effective Date (the “Initial Term”), unless sooner terminated in accordance with the provisions of this Agreement. This Agreement shall be extended by mutual written agreement of the parties at the end of the Initial Term or any Renewal Term (each such renewal, a “Renewal Term”). The Initial Term together with any Renewal Terms constitutes the (“Term”).
2.2 Termination. This Agreement may be terminated prior to the end of the Term (a) by mutual written agreement of the parties, or (b) by a party in the event of a Default (defined below) by the other party, which Default is not cured within thirty (30) days after the Defaulting party’s receipt of a written notice describing the Default from the non-Defaulting party. The term “Default” means the occurrence of any one of the following events: (i) a material breach of this Agreement; (ii) a party becoming insolvent or unable to pay debts as they mature; (iii) a party filing for protection under any bankruptcy or similar laws or any proceeding in bankruptcy, receivership or insolvency shall be commenced by or against customer or its property; or (iv) a party making an assignment for the benefit of its creditors.
2.3 Effect of Expiration or Termination. The expiration of this Agreement or the earlier termination of this Agreement for any reason will not release either party hereto from any liability or obligation which, at the time of the expiration of this Agreement or the earlier termination of this Agreement for any reason, has already accrued or which thereafter may accrue in respect to any act or omission prior to the expiration of this Agreement or the earlier termination of this Agreement for any reason. In the event that this Agreement is terminated prior to the end of the Term, Customer shall within five (5) days after the date of such termination pay to binx an amount equal to the purchase price for the volume of Reagents necessary to fulfill the Purchase Commitment, as set forth in the Reagent Rental Agreement, for all Reagents for the remainder of the Term and any other payments due related thereto. In addition, Customer will, at its cost and expense, ship the Instrument in Good Condition to a location designated by binx within thirty (30) days after the effective date of such expiration or termination. If binx has not received the Instrument within such thirty (30) day period, Customer will, promptly upon binx’s request, provide binx with physical access to the Instrument and cooperate as necessary to enable Binx to pack and ship the Instrument at Customer’s cost and expense to a location designated by binx. Customer shall return the Instrument(s) in good and working condition, as determined in binx’s sole discretion, normal wear and tear excepted (“Good Condition”). In the event the Instruments are not returned in Good Condition, binx will invoice, and Customer shall pay, for the excessive wear and tear and/or undepreciated amount of the Instrument, in binx’s sole discretion. In addition, Customer agrees that it shall carry insurance to cover any damage to the Instrument in reasonable amounts that are customary in the industry.
3.1 Confidential Information. The parties agree that in connection with the transactions contemplated by this Agreement, each Party will have access to Confidential Information of the other. “Confidential Information” means non-public scientific, technical, financial or business information, or data disclosed to a party, whether marked as “confidential” or not and whether disclosed orally, in writing, or in another tangible medium by one party (the “Discloser”) to the other (the “Recipient”). binx’s Confidential Information includes the Products, all related specifications and documentation, and all training and other similar materials. Recipient agrees to: (i) hold all Confidential Information in the strictest confidence, including taking all reasonable precautions to prevent any misuse or violative disclosure of any of such Confidential Information to any third party, (ii) use Discloser’s Confidential Information solely to carry out Recipient’s rights or obligations under this Agreement, and (iii) not at any time without Discloser’s express written consent, reproduce, display, transmit, distribute, modify, translate, communicate, combine with other information or materials, create derivative works based on, exploit commercially, or otherwise use any such Confidential Information except as permitted hereunder.
3.2 Notification. Recipient will: (i) notify Discloser immediately (by email and in writing) upon discovery of any loss, misuse, misappropriation, or unauthorized disclosure of any Confidential Information by the Recipient and (ii) cooperate with Discloser in every way to help Discloser regain possession of any Confidential Information that is lost, misused, or misappropriated by the Recipient and to prevent any further unauthorized use, misuse, or disclosure by the Customer of any such Confidential Information.
3.3 Return or Destruction of Confidential Information. The Recipient shall not take or retain any Confidential Information that is in written, computerized, model, sample, or any other form capable of physical delivery, upon or after the expiration of this Agreement or the earlier termination of this Agreement for any reason without the prior written consent of Discloser, which consent may be withheld by Discloser in its sole and absolute discretion. Upon the expiration of this Agreement or the earlier termination of this Agreement upon the request of Discloser, the Recipient shall promptly return to Discloser or destroy all Confidential Information in its possession and materials, written or otherwise, containing or reflecting any information contained in the Confidential Information (including all copies). Notwithstanding the return of the Confidential Information by the Recipient to Discloser or the destruction of the Confidential Information by the Recipient, the Recipient will continue to abide by its obligations of confidentiality with respect to the Confidential Information as set forth herein.
3.4 Disclosures of Confidential Information Required by Law. In the event that the Recipient is required by law or any governmental authority, including any court of competent jurisdiction, to disclose any Confidential Information, Recipient will give Discloser prompt written notice of such requirement or order and Recipient will take all reasonable and lawful actions to avoid or minimize the degree of such disclosure. Recipient will cooperate reasonably with Discloser in any efforts to seek a protective order; provided for clarity that a party may disclose information as required by The Physician Payments Sunshine Act without providing such notification or cooperation.
3.5 Enforcement. The parties hereto agree that money damages alone would not be an adequate remedy for any breach of this Article. Therefore, in the event of a breach or threatened breach of the provisions of this Article, Discloser may, in addition to other rights and remedies existing in Discloser’s favor, apply to any court of competent jurisdiction for specific performance, injunctive, or other equitable relief in order to enforce or prevent any violation of the provisions of this Article (without proving monetary damages or posting a bond or other security).
4.1 Warranty. binx warrants that during the Term, the Reagents shall meet the performance specifications described in the package inserts provided along with such Reagents. If Customer notifies binx of a reproducible failure of the Reagent to conform to the applicable warranty during the applicable warranty period, binx shall, as Customer’s sole and exclusive remedy for such failure, repair or replace the applicable Reagent. In the event the binx replaces the Insturment under warranty, the replacement unit may be refurbished or refielded but it shall be treated as new under this warranty.
4.2 Exclusions. The foregoing warranty shall not apply in the event that: (a) Customer has used or stored the Reagents or the Instrument other than in accordance with the Documentation; (b) the Reagent has been modified, used for off-label uses, or subject to misuse, negligence, neglect, or accident, including storage or operation in adverse environments; (c) the Reagent shelf-life has expired; or (d) Customer is in Default. Binx does not warrant the accuracy of any test result using the Reagents.
4.3 Disclaimer. THE WARRANTIES IN THIS ARTICLE 4 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, AND BINX HEREBY DISCLAIMS ANY SUCH WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING FOR USAGE OR TRADE PRACTICE.
5.1 Limitation of Liability. IN NO EVENT SHALL BINX BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND COSTS INCURRED BY CUSTOMER ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING IN CONNECTION WITH THE USE OF THE INSTRUMENTS OR REAGENTS BY CUSTOMER OR ANY OTHER PERSON UTILIZING THE INSTRUMENT OR REAGENTS OR THE RESULTS THEREOF AND THE PROVISION OF SERVICES HEREUNDER. SUCH LIMITATION SHALL APPLY WITHOUT REGARD TO WHETHER SUCH DAMAGES ARE CLAIMED, ASSERTED OR BROUGHT IN AN ACTION OR CLAIM SOUNDING IN TORT OR CONTRACT OR UNDER ANY OTHER LAW OR FORM OF ACTION. BINX’S AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE PAYMENTS RECEIVED BY BINX FOR THE PRODUCT OR SERVICE RESULTING IN THE LOSS OR DAMAGE CLAIMED.
6.1 binx Indemnity. binx shall at its expense defend any action brought against Customer with respect to a claim by a third party that the design or manufacture of any Product infringes any United States patent, copyright or trade secret and shall pay any damages awarded by a court arising from such claim, provided Customer gives binx prompt written notice of such claim and full authority, information and assistance in settling or defending such claim. If a court judgment prohibits Customer’s continued use of any Product, or if at any time binx determines that any Product may become subject to a cause of action for infringement, binx may at its expense either (a) procure a license to enable Customer to continue using such Product, (b) replace such Product with a non-infringing product, or (c) accept return of such Product and refund the purchase price paid by Customer for such Product. binx shall have no liability hereunder with respect to any claims settled by Customer without binx’s prior written consent. binx’s obligations under this Section 6.1 do not include claimed infringement of any third party intellectual property rights: (i) arising from the use of a Product other than in accordance with its applicable documentation, (ii) based on the combination of equipment, processes, programming applications or materials not furnished by binx with the Products, (iii) arising out of compliance by binx with Customer’s designs, specifications or instructions, or (iv) damages incurred as a result of Customer’s continued use of a Product after binx has recommended in writing that Customer suspend such use, which Customer shall at its expense indemnify and hold binx harmless for any such claim brought against binx by a third party and pay any damages awarded by a court arising from such claim. This Section 6.1 states binx’s entire liability for any claim based upon or related to any alleged infringement by a Product of intellectual property right.
7.1 Entire Agreement and Amendments. This Agreement, including its recitals and Exhibits, constitutes the entire agreement between the parties hereto and supersedes all agreements, covenants, obligations, representations, warranties, statements, promises, terms, or understandings, whether oral or written, with respect to the subject matter hereof. No party hereto shall be bound by nor charged with any oral or written agreements, covenants, obligations, representations, warranties, statements, promises, terms, or understandings not specifically set forth in this Agreement. No amendments or modifications of the terms of this Agreement shall be binding on either party hereto unless reduced to writing and signed by a duly authorized representative of each party hereto.
7.2 Notices. All notices given pursuant to this Agreement shall be sent by: (a) certified mail, return receipt requested, in which case notice will be deemed delivered three (3) business days after deposit, postage prepaid in the United States mail; (b) a nationally recognized overnight courier, in which case notice will be deemed delivered one (1) business day after deposit with such courier; or (c) personal delivery, in which case notice will be deemed delivered upon delivery. The address of binx is as set forth in the Reagent Rental Agreement Attention: Legal Department, and the address of Customer is as set forth in the Reagent Rental Agreement. The addresses in this Section 7.2 may be changed by written notice to the other party hereto, provided that no notice of a change of address will be effective until actual receipt of such notice.
7.3 Choice of Law and Consent to Jurisdiction. All issues and questions concerning the construction, validity, enforcement, and interpretation of this Agreement shall be governed by and construed in accordance with the Laws of the Commonwealth of Massachusetts, without giving effect to any choice of law or conflict of law rules or provisions. Any action hereunder shall be brought in the appropriate federal or state court located in Boston, Massachusetts, and the parties hereby irrevocably and unconditionally consents to the jurisdiction of and waives any defense of improper venue or forum non convenes with respect to, any such courts. Each party hereto consents to service of process at its address set forth in herein. Each party hereto further irrevocably agrees that any action to enforce, interpret, or construe any provision of this agreement will be brought only in one of such courts and not in any other court.
7.4 Export Controls. Customer covenants and agrees that it shall not export any Product to any person or entity: (a) located in a U.S. embargoed country, (b) listed on any U.S. list of prohibited or restricted parties, (c) in violation of any other laws or indirectly related to nuclear, chemical or biological weapons or missiles.
7.5 Waiver. No consent or waiver, express or implied, by a party hereto to or of any breach or default by any other party hereto in the performance by such party of its obligations under this Agreement shall be deemed or construed to be a consent or waiver to or of any breach or default in the performance by such party hereto of the same or any other obligations of such party hereunder. Failure on the part of a party hereto to complain of any act or failure to act of any other party hereto or to declare any other party hereto in default, irrespective of how long such failure continues, shall not constitute a waiver by such party hereto of such default or its rights under this Agreement.
7.6 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including labor disputes, strikes, lockouts, riots, war, fire, pandemics, acts of God, unavailability of components, or acts of government.
7.7 Severability. If any term or other provision of this Agreement is held invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect to the broadest extent possible. Upon any judicial determination that any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible.
7.8 Assignment. Customer may not assign this Agreement without the prior written consent of binx.
7.9 Relationship of the Parties. This Agreement is not intended to create and shall not be construed as creating between binx and Customer the relationship of Affiliate, principal and agent, joint venture, partnership, or any other similar relationship, the existence of which is hereby expressly denied.
7.10 Counterparts; Facsimile/PDF Signatures; Headings and Interpretation. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument.
7.11 Survival. Notwithstanding anything to the contrary that may be contained elsewhere in this Agreement, Sections 1.5, 1.6, 1.7, 1.8, 2.3, 5.1 and Articles III, VI and VII shall survive, and remain in full force and effect following the expiration of this Agreement or the earlier termination of this Agreement for any reason.
Installation: Customer will be responsible for preparing and providing the necessary space and other facilities requirements (including appropriate electrical connections, heating, ventilation and other environmental requirements as set forth in the Documentation) necessary to support the installation of the Instrument. After such facilities requirements have been provided, binx will ensure standard set-up and training, via telephone and/or video conference, with respect to the Instrument.
Maintenance: During the Instrument Warranty Period (as defined in Section 4.1 of the Agreement) and any period for which Customer has paid the Maintenance Fee (defined below), binx will provide Technical Support as described further below and, depending on the Problem and its severity, provide a replacement instrument(s). binx may retain third parties for the performance of the Technical Support and field service.
Technical Support: binx will provide technical phone support from 8 a.m. to 6 p.m. U.S. Eastern Time, Monday through Friday, excluding binx holidays. On call emergency phone support after such hours will be made available by automated call dispatching notification service.
Maintenance Limitations: Maintenance does not include issues caused by use of the Instrument other than when used in accordance with the Documentation, modifications to the Instrument other than as expressly authorized by binx, off-label uses or other misuse, negligence, neglect, or accident, storage or operation in adverse environments (“Excluded Events”). Customer shall pay for any binx activities related to Excluded Events at binx’s then standard hourly rates subject to minimum fees, as applicable. Customer will adhere to any requirements specified in the Instrument labeling and the Documentation. Any off-label usage of the Instrument or Reagents will void binx’s service obligations hereunder.
A “Problem” means a reproducible problem with an Instrument that causes the Instrument to fail to operate substantially in accordance with its Documentation.