North American Services Plans Terms & Conditions (excludes Lunaphore Comet)

North American Service Plan Options, by Instrument

Service Plan Comparison

Hana and Pala Single Cell Dispenser Service Plans 

Imager Service Plans 

EXPLANATORY NOTES 

Eligibility 

• Product must be currently covered under warranty or a prior Service Agreement to be eligible for coverage under a Service Agreement. If a Product has been out of warranty or Service Agreement, a reinstatement inspection and Fee will apply before the system can be placed under a Service Agreement. If the inspection uncovers any discrepancies in instrument performance, they must be corrected at time and material rates before the Product can be placed under a Service Agreement. 

Phone and email Technical Support 

• Email Support: An email request for service can be sent to: support@proteinsimple.com
• Phone Support: Technical Support Specialists can be reached at 1-888-607-9692, between the hours of 7am – 4pm
• PST, excluding weekends and holidays. A list of standard holidays will be provided to Customer upon request. Please call from a location which provides physical access to the system if needed. ProteinSimple will acknowledge receipt of a service request within two (2) hours.
• Before contacting ProteinSimple, please have the following information available:
  • System Serial Number and Camera Serial Number (Imagers only), if applicable.
  • Current version of Software, both name and version number.
  • Current version of Operating System on computer.
  • Description of problem and any troubleshooting steps Customer has already taken.
• Phone and/or email support will be provided first to try to resolve Customer issue. If ProteinSimple determines that a repair or field visit is necessary to resolve Customer issue, ProteinSimple will issue a Return Material Authorization (RMA) or dispatch its Field Service Engineer (FSE). ProteinSimple will use commercially reasonable efforts to have its FSE arrive at the Customer location within three (3) business days following the dispatch of the FSE. All service requests from Customer will receive preferential consideration over service requests from customers that are not under existing warranty or Service Agreement. 

Complete system coverage 

• Agreement covers service of the instrument in its entirety, unless specifically excluded in this Agreement. 

Computer Coverage 

• When a Service Agreement covers the cost of parts, any separate computer purchased with the system is covered as well. Coverage is not provided for computers experiencing performance issues due to customer modification or misuse.  Some computers sold with instruments are covered by manufacturers’ warranties which may provide coverage for longer periods of time than the standard ProteinSimple warranty or Service Agreement period.  Contact Technical Support for details. 

Repair Location 

• When service at the Customer location is included in the Service Plan, ProteinSimple will dispatch a service engineer as required to diagnose and repair instrument problems, or to complete the included preventive maintenance. Coverage of costs for travel, related expenses, and labor are based on the service plan  .  When depot service is included in the Service Plan chosen, the Customer will ship their instrument to the specified ProteinSimple depot repair location where diagnostics and repairs will take place, and then the instrument will be shipped back to the Customer. 

Replacement Parts / Instrument 

• When a Service Plan is chosen that includes replacement parts, ProteinSimple will provide either replacement parts, a replacement instrument or field service, at ProteinSimple’s sole discretion.  Replacement parts will only be sent directly to the Customer in cases where the parts are customer installable.  If replacement parts or instruments are provided, the damaged parts or instrument must be returned within 2 weeks after receipt of the replacements. 

Use of a Loaner Instrument 

• For some Service Plans where service is performed at a ProteinSimple depot repair location, the Customer will be given the option to receive a loaner instrument of similar type to use for the duration of the depot service repair.  This loaner instrument remains the property of ProteinSimple, and we ask that the Customer return the loaner promptly after receiving their repaired instrument back from the depot repair center.  When a Service Plan provides for on-site service, a loaner instrument will be offered for duration of the factory repairs if ProteinSimple’s service engineer is unable to make necessary repairs on-site and the instrument must be sent back to the factory. 

Shipping costs 

• “Split” indicates Customer pays the cost of shipping the instrument to ProteinSimple and ProteinSimple pays for return shipping.  “Y” indicates that all shipping is covered by ProteinSimple. 

Option to Purchase Field Service at Discount Rates 

• When the Customer has purchased a Service Plan that provides repair at a ProteinSimple depot location, the Customer may purchase on-site service by a FSE at a 20% discount to standard rates.  Travel charges are billed at actual costs. 

Software Coverage and Updates 

• Instruments under all Service Plan levels are entitled to software updates during the Agreement period. A software update includes bug fixes and minor feature improvements. 

Preventive Maintenance 

• When the Service Plan includes a Preventive Maintenance (PM), Customer is provided with one (1) PM for the covered instrument. PM’s are normally scheduled for the end of the Agreement period, but can be adjusted at Customer request.  To accommodate ProteinSimple and Customer schedules and instrument availability, we recommend PM’s be conducted between 11 and 13 months after the prior PM completion date. Exclusions
  • Media replacement for software ProteinSimple no longer ships with new systems will not be provided.
  • Re-alignment or re-installation of systems following any instrument movement by a Customer will not becovered under the Service Plan. 

Missed Service Call 

• If Customer or Customer’s authorized representative is not available at the agreed time of FSE arrival for a mutually scheduled FSE visit and results in the engineer being unable to proceed with service call, the FSE will leave a card to let the Customer know they were there. If this occurs, Customer will be charged travel and time for the missed service call. 

SERVICE TERMS AND CONDITIONS

These terms and conditions, together with the terms of the Quotation and Summary and Comparison of Plan Options (“Summary”) attached, together constitutes the Service Agreement (this “Agreement”), which is entered into as of the date of Purchase Order issuance (the “Effective date”) by and between ProteinSimple, a Delaware corporation, or one of its affiliated companies (collectively or individually referred to as ProteinSimple”) and Customer.  

1. SERVICES. Subject to the terms and conditions of this Agreement, ProteinSimple will use commercially reasonable efforts to provide to Customer the following services (“Services”) for the product(s) and Service Plan Option identified in the attached Quotation (“Products”). 

   1. Diagnosis and repair services for any malfunction resulting from and traceable to defects in materials and workmanship as further described in the quotation; and
   2. Preventative Maintenance services as further described in the quotation; and
   3. Software maintenance and support services as further described in Exhibit A. 

   As used herein, “Quotation” means the quotation attached. “Malfunction” means the inability of the instrument to meet advertised performance specifications.  Subject to Customer’s payment of the Fees under Section 9, ProteinSimple will be responsible for all costs incurred in providing the Services including labor and material, and travel expenses except as otherwise provided in this agreement. ProteinSimple shall have the right to determine in its sole discretion what corrective action ProteinSimple will perform to fix any malfunction in a Product. ProteinSimple may subcontract the Services to a third-party contractor provided that ProteinSimple will be responsible for the third-party contractor’s compliance with the terms of this agreement.

    

2. REPLACEMENT PARTS. As part of the Services, when the Customer has purchased a plan level that provides free-of-charge replacement parts, ProteinSimple will provide replacement parts or instruments for any defective or damaged parts or instruments due to defects in materials and workmanship. Replacement parts may be new, remanufactured, or refurbished at ProteinSimple’s sole discretion.  Any parts that have been replaced will become the property of ProteinSimple.  ProteinSimple will not provide free-of-charge spare parts or consumables (e.g. capillaries, reagents, air filters, etc.). Customer may purchase spare parts from ProteinSimple in instances where parts replacement is simple and does not involve opening up the instrument.

    

3. RESPONSE TIME. The Services are available during the hours of 9am and 5pm within the time zone where the instrument resides, Monday through Friday, excluding holidays. A list of standard holidays will be provided to Customer upon request. Customer may contact ProteinSimple via telephone during the hours of 7am (PST) and 4pm (PST) to report any malfunction of a Product. ProteinSimple will acknowledge receipt of a service request within two (2) hours. If the service request cannot be resolved over the telephone and if the Customer has purchased a Service Plan with on-site service, ProteinSimple will dispatch a field service engineer. ProteinSimple will use commercially reasonable efforts to have its field service engineer arrive at the Customer location within three (3) business days after the field service engineer is dispatched. All service requests from Customer will receive preferential consideration over service requests from Customers that are not under existing warranty or a Service Agreement.

    

4. SUPPORT CONDITIONS. ProteinSimple’s obligation to provide the Services is conditioned on Customer: a) notifying ProteinSimple of any malfunction of a Product within a reasonable period of time; b) providing ProteinSimple all information relating to the malfunction; c) providing access to the Product and Customer’s facility where the Product is located; d) informing ProteinSimple of any potential hazards which may be encountered while servicing the Product; and e) shipping damaged parts and instruments to ProteinSimple for repair or return.

    

5. SERVICE EXCLUSIONS. ProteinSimple is not obligated to provide the Services if any malfunction arises from or relates to: a) improper installation of a Product; b) neglect, misuse or abuse of a Product; c) use of unauthorized parts or reagents or removal of any parts; d) repair, modification or alteration of a Product by anyone other than an authorized ProteinSimple service representative; e) relocation of a Product; f) failure of or erratic electrical power; g) fire, earthquake or other force majeure event; h) alteration of Product by Customer IT personnel or other network professionals; i) failure of the instrument to perform properly due to an unsupported network configuration; or j) failure of the Product due to operation outside of prescribed environmental conditions. The Services do not include training in using, diagnosing or repairing a Product, relocating a Product, or any service other than those referred to in this Agreement. ProteinSimple may refuse to provide the Services with respect to any Product that has not been properly maintained.

    

6. REINSTATEMENT. If the original warranty or previous service agreement for any Product has expired, a reinstatement inspection by ProteinSimple, which confirms that such Product has been properly maintained, may be required before ProteinSimple will provide the Services for such Product under this Agreement. If reinstatement inspection is required, Customer will be separately billed for the costs for the reinstatement inspection and any repairs necessary to bring the Product up to a serviceable level. The Fees (described in Section 9) do not include reinstatement inspection or subsequent repairs. If both parties agree, a fee and delayed Agreement start date may replace the inspection. In this case, the quotation will show reinstatement fee and appropriate start and end dates for the Agreement.

    

7. IP OWNERSHIP. As between ProteinSimple and Customer, ProteinSimple will exclusively own all rights in and to any inventions, improvements, or technology created, developed, or made by any employee or contractor of ProteinSimple in connections with the performance of the Services.

    

8. CONFIDENTIAL INFORMATION. ProteinSimple will use the same degree of care (and in no event less than reasonable care) to safeguard the confidentiality of the Customer’s Confidential Information that it uses to protect its own confidential and proprietary information.  ProteinSimple will not disclose Customer’s Confidential Information except as authorized in writing by Customer nor will it use Customer’s Confidential Information for any purpose other than performance of the Services.  Upon termination or expiration of this Agreement, ProteinSimple will destroy or return all Customer’s Confidential Information in its possession.

    

9. FEES. On or before the Effective Date, Customer will pay the annual service fee provided in the quotation (the “Fees”). The Fees do not include any taxes. Customer will be responsible for and will indemnify and hold ProteinSimple harmless from the payment of all taxes (other than taxes based upon ProteinSimple’s net income), fees, duties and other governmental charges arising from the payment of the Fees. ProteinSimple may charge a late fee based on any portion of the Fees not paid when due at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less, from the due date until paid.

    

10. WARRANTY AND DISCLAIMER. ProteinSimple warrants that the replacement parts will be free from defects in materials and workmanship during the period equal to the greater of (i) ninety (90) days after the date of the installation or (ii) the remaining term of this Agreement. For breach of the foregoing warranty, ProteinSimple will, at its option and expense and as the Customer’s exclusive remedy, repair or replace the defective replacement part returned to ProteinSimple (or reported to ProteinSimple if not feasible to return) during the warranty period.  Except as stated here, ProteinSimple makes no other promises or warranties about performance of the Products or Services or replacement parts.

     

11. LIMITATION OF LIABILITY. In no event will ProteinSimple be liable for any consequential, indirect, exemplary, special or incidental damages, including any lost profits, arising from or relating to this Agreement or the Services even if ProteinSimple has been advised of the possibility of such damages. ProteinSimple’s total cumulative liability in connection with this Agreement or the Services, whether contract or tort or otherwise, will not exceed the Fees paid during the twelve (12) months period preceding the claim. One or more claims will not enlarge this limit.

     

12. INDEMNITY. Customer will defend, indemnify and hold ProteinSimple harmless from any and all claims, losses, damages, debts, settlements, costs, attorneys’ fee, expenses and liabilities of any type whatsoever (collectively “Claims”) arising from or related to any injury to employees or contractors of ProteinSimple caused by improper installation or use of a Product by Customer, power supply used by Customer with a Product, or any material processed by a Product. ProteinSimple will have the right to participate in or conduct the defense of such Claim with counsel of its own choice. ProteinSimple will use reasonable effort to promptly notify Customer of any such Claim. No settlement of a Claim will be binding on ProteinSimple without its prior written consent.

     

13. TERM AND TERMINATION. The term of this Agreement will begin on the Effective Date and continue for one (1) year from the Effective Date. Either party may terminate this Agreement effective immediately, if the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof. If ProteinSimple terminates this Agreement as a result of Customer’s material breach, ProteinSimple will not be obligated to refund any portion of the Fees paid for the Services. Customer may terminate this Agreement by providing to ProteinSimple thirty (30) days prior written notice if Customer trades in the Product to purchase another system from ProteinSimple and ProteinSimple will provide a prorated refund of the Fees paid for the Services based on the remaining duration of the term of this Agreement. Sections 7, 8, 11, 12, 14 and 17 will survive any termination or expiration of this Agreement.

     

14. INDEPENDENT CONTRACTOR. The parties are acting hereunder as independent contractors and not as partners, agents, fiduciaries or joint ventures. Neither party has the power or authority to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party.

     

15. ASSIGNMENT. Neither party may assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, except ProteinSimple may transfer any rights or obligations under this Agreement to an affiliate of ProteinSimple or a third party in connection with the sale of all or a material portion of ProteinSimple’s assets or business, whether by merger, sale of assets, sale of stock or otherwise, and ProteinSimple may subcontract the Services as provided in Section 1. Any attempted assignment in violation of this section is null and void. This Agreement will be binding upon and shall inure to the benefits of the parties hereto and their respective successors and assigns.

     

16. FORCE MAJEURE. Any delay in the performance of any duties under this Agreement (except for payment of Fees owed) by either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood or other event beyond the control of such party, provided that such party uses reasonable efforts to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

     

17. GENERAL. This Agreement will be governed by the laws of the State of Delaware, without regard to conflicts of law principles which would require the application of the laws of any other state. All waivers must be in writing. A party’s failure to exercise any of its rights under this Agreement shall not constitute a waiver or forfeiture of any such rights nor of any other rights. If any provision of the Agreement is unenforceable or invalid pursuant to any applicable law, such enforceability or invalid provision will be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law and applicable court decisions. This Agreement represents the entire agreement between the parties as to the matters set forth herein and integrates all prior discussions and understanding between the parties. Any additional or inconsistent terms provided in any purchase order will not have any legally binding effect. This Agreement may be modified only by a written instrument signed by both parties.

EXHIBIT A 

SOFTWARE SUPPORT AND MAINTENANCE 

1. Support and Maintenance Services. The software support and maintenance services includes the following services: 

   1. ProteinSimple will answer technical questions concerning functions and features of the software;
   2. ProteinSimple will provide error verification, analysis and corrective efforts for the software; and
   3. ProteinSimple will provide, without charge, Updates of the software released during the term of thisAgreement. 

   As used herein, “Update” means those releases of the software that ProteinSimple provides to licensees to correct errors, fix bugs, or create minor improvements, incremental features, or enhancements of existing features which ProteinSimple designates by a change in the number to the right of the first or second decimal point.  Updates do not include those releases of the software that provide substantial new features or additional functionality which ProteinSimple designates by a change in the number to the left of the first decimal point. 

   Customer acknowledges that all reported errors may not be corrected.  Any update of the software will be deemed part of the software and will be used in accordance with the requirements and obligations in the license agreement for the software. 

    

2. Exclusions from Support.  In addition to the exclusions provided in Section 5 of this Agreement, ProteinSimple will not be obligated to provide the software support services if (a) any error is caused by malfunction of any hardware (other than malfunction of any Product) used with the software or third-party software; or (b) Customer has failed to incorporate the latest Update previously released to Customer.