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HomeMy WebLinkAbout22-142 Resolution No. 22-142 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE AGREEMENT WITH PERKINELMER HEALTH SCIENCES, INC. FOR THE PURCHASE OF AN ATOMIC ABSORPTION SPECTROMETER BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9)the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Purchase Agreement on behalf of the City of Elgin with PerkinElmer Health Sciences, Inc., for the purchase of an atomic absorption spectrometer to analyze water samples for the presence of lead, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: August 10, 2022 Passed: August 10, 2022 Omnibus Vote: Yeas: 8 Nays: 0 Recorded: August 10, 2022 Published: August 10, 2022 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk PURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this loth day of August 2022, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and PerkinEhmer Health Sciences, Inc., a Delaware corporation, (hereinafter referred to as "PerkinElmer" or"Seller"). NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. PURCHASE. City shall purchase, and PerkinElmer shall sell the goods and services described by Attachment A. This purchase includes but is not limited to an initial training session which shall be provided within 30 days of installation, and advanced training, which shall be provided within 4 months of the initial training. 2. TERMS. This Agreement shall be subject to the terms and conditions contained herein and as provided by Attachments A and B, attached hereto and made a part hereof. 3. LAW/VENUE. This agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be the Circuit Court of Kane County, Illinois. PerkinElmer hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof; and PerkinElmer agrees that service by first class U.S. mail to PerkinElmer Health Sciences, Inc., 710 Bridgeport Avenue, Shelton, CT 06484-4794 shall constitute effective service. Both parties hereto waive any rights to a jam'• 4. NO MODIFICATION. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 5. MERGER. This agreement embodies the whole agreement of the parties. There are no promises, terms, conditions or obligations other than those contained herein, and this agreement shall supersede all previous communications, representations or agreements, either verbal, written or implied between the parties hereto. 6. INTEREST. PerkinElmer hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this agreement, and waives any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act (50 ILCS 50511, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this agreement. 7. SEVERABILITY. The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any reason,the remainder of this agreement shall remain in full force and effect. 8. COMPLIANCE WITH LAW. Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this agreement, PerkinElmer shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, PerkinElmer hereby certifies, represents and warrants to the City that all of PerkinElmer's employees and/or agents who will be providing products and/or services with respect to this agreement shall be legally authorized to work in the United States. PerkinElmer shall also, at its expense, secure all permits and licenses,pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this agreement. The City shall have the right to audit any records in the possession or control of PerkinElmer to determine PerkinEhner's compliance with the provisions of this section. In the event the City proceeds with such an audit, PerkinElmer shall make available to the City PerkinElmer's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 9. EXECUTION. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e- mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this agreement shall be re-executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. 10. CONFLICT. In the event of any conflict between the terms and provisions of this purchase agreement and Attachment A hereto, the terms and provisions of this purchase agreement shall supersede and control. 11. PAYMENT. City shall pay the total sum of$76,341.20 within thirty (30) days of delivery or city's receipt of invoice,whichever is later. The aforementioned total sum is inclusive of all freight, shipping and applicable taxes. The City is a tax-exempt governmental body. 12. DELIVERY. PerkinElmer shall complete delivery of all goods on or before October 1,2022, as long as a purchase order is received eight weeks prior to that date. 13. LIMITATION OF DAMAGES. In no event shall City be liable for any monetary damages in excess of the purchase price contemplated by this agreement. In no event shall City be liable for any consequential, special or punitive damages, or any damages resulting from loss of profit. 14. TRANSFER OF TITLE/RISK. Transfer of title, and risk of loss shall pass to the City upon delivery of the goods. 2 15. INDEMNIFICATION. To the fullest extent permitted by law, PerkinElmer agrees to and shall indemnify and hold harmless the City, its officers, employees,boards and commissions from and against any and all third party claims, suits,judgments, costs, attorney's fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of PerkinElmer or PerkinElmer's officers, employees, agents or subcontractors in the performance of this agreement, including but not limited to, all goods delivered or services or work performed hereunder. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify and hold harmless, such action shall be defended by legal counsel of the City's choosing. 16. RELATIONSHIP BETWEEN THE PARTIES. This Agreement shall not be construed so as to create a joint venture, partnership, employment or other agency relationship between the parties hereto. 17. WAIVER. Neither party hereto shall be responsible for any consequential, indirect, punitive or incidental damages for any reason whatsoever. Any delay or failure to enforce any rights by either party arising out of or pursuant to this Agreement shall not constitute, and shall not be construed as, a waiver of any such rights. 18. LIMITATION OF ACTIONS. PerkinElmer shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City of Elgin and/or its affiliates, officers, employees, agents, attorneys, boards and commissions of any nature whatsoever and in whatsoever forum after August 1,2024. 19. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement. 20. NO WAIVER OF IMMUNITIES OR RIGHTS. This agreement is not intended and shall not be construed to alter, limit, or constitute a waiver of any of the civil immunities afforded the City and/or PerkinElmer and/or their officials, officers, employees and/or agents pursuant to the Local Governmental and Governmental Employees Tort Immunity Act at 745 ILCS 10/1-101, et seq., as amended, the Emergency Telephone System Act at 50 ILCS 750/0.01 et seq., as amended, and/or as otherwise provided by law, it being agreed that all the civil immunities as set forth in such Acts, as amended, and/or as otherwise provided by law shall fully apply to any claims asserted or which might be asserted against the City and/or PerkinElmer and/or their respective officials, officers, employees and/or agents as a result of this agreement or any actions of the Parties pursuant to this agreement. 21. NO SPECIAL OR OTHER DUTY. No special duties or obligations are intended and shall not be deemed or construed to be created by this agreement. Notwithstanding anything to the contrary in this agreement, it is agreed and understood that no third party beneficiaries are intended or shall be construed to be created by the provisions of this agreement and it is the intention of the parties hereto that no action may be commenced by any person or entity against the City and/or its respective officials, officers, employees, agents and/or other related persons or entities for monetary damages for any alleged breach or failure to provide services described in this agreement. The provisions of this section shall survive any expiration and/or termination of this agreement. 3 The person signing this Agreement certifies that s/he has been authorized by the Seller to commit the Seller contractually and has been authorized to execute this Agreement on its behalf. IN WITNESS WHEREOF, the parties have hereto set their hands the day and year first above written. PERKINELMER HEALTH SCIENCES, INC. CIT GIN Anna Boyle G Print Name Richard G. Kozal,City Manager d Att st: Signature Sr. Contract Administration Specialist Iffity Clerk Title Legal Dept\AgreementTerkinElmer Health Sciences Agr-Atomic Absorption Equip-7-29-22.docx 4 ATTACHMENT A PAGE 1 of 5 PerkinElmer" FortaeBeuer Quotation PerkinElmer Health Sciences Inc. Phone: 1-800-762-4000 710 Bridgeport Avenue Fax:203-944-4904 Shelton, CT064 84-4 794 To: DEBRA NESS Quotation No.: 22770105 CITY OF ELGIN Quotation Valid To: 08/09/2022 375 WEST RIVER ROAD Quotation Date: 06/17/2022 ELGIN IL 60123 Payment Terms: As per Contract Freight Terms: DDP Ultimate Destination: City of Elgin Facilities,USA Telephone No.: 847-931-6753 Fax No.: Your Reference: ITEM MATERIAL I DESCRIPTION TY/EA UNIT PRICE TOTAL I N3200081 PinAAcle 900T THGA/Flame Stainless Neb 1 74,600.00 This configuration includes a PinAAcle 900T with a stainless steel nebulizer.A compatible furnace cooling system,monitor,mouse, keyboard,computer and Syngistix for AA Software package are required and must be purchased separately. The PinAAcle 900T is designed for optimized,cost-effective,automatic flame and graphite furnace atomic absorption analyses.Standard features include complete system control from a single keyboard,a stacked design with the flame atomizer above and the graphite furnace below at its respective pre-aligned optimized position.The instrument also features automated flame gas flow optimization and control with deuterium background corrector for flame,an integrated transversely heated graphite atomizer(THGA)fumace with Zeeman background corrector,an AS 900 furnace autosampler and an 8-position lamp holder.The lamp holder features automatic lamp selection and alignment and also has built-in power supplies for hollow cathode lamps(HCL)and electrodeless discharge lamps(EDL).The PmAAcle 900T is also directly compatible with the optional Flow Injection mercury/hydride system and flame autosamplers. The PinAAcle 900T includes a high light throughput,true'real-time' double-beam optical system with protective coatings for improved UV reflectivity and corrosion resistance are used throughout. The optical system features fiber optic cables,a solid state detector and is fully enclosed with covers for protection from dust and corrosive atmospheres. SEND PURCHASE ORDERS TO: PerkinElmer Health Sciences,Inc. 710 Bridgeport Ave. SALES REPRESENTATIVE: Doug Sterner Shelton,CT 06484-4794 PREPARED BY: Natasha Harrison Phone: 1-800-762-4000 Fax:203-944-4904 Email:USInstrumentOrders@perkinelmer.com Z02 PAGE 2 of 5 PerkinElmer' For the Better Quotation PerkinElmer Health Sciences Inc. Phone: 1-800-762-4000 710 Bridgeport Avenue Fax. 203-944-4904 Shelton, CT 064 84-4 794 Quotation No.: 22770105 Quotation Valid To: 08/09/2022 To: DEBRA NESS Quotation Date: 06/17/2022 CITY OF ELGIN ITEM MATERIAL DESCRIPTION TY/EA UNIT PRICE TOTAL The instrument also features a quick-change bumer assembly module that requires no gas line connections.Interchanging of this sample introduction module is easy and fast.The module includes a PerkinElmer standard 10cm all-solid titanium burner head,the burner chamber and a PerkinElmer durable stainless steel nebulizer(SSN)with its accompanying end-cap. The 900T has a built-in and fully computer controlled THGA furnace.The graphite tube is transversely heated providing a uniform temperature profile over the entire tube.An external protective gas stream around the graphite tube prevents the entrance of outside air to maximize tube life.An internal purge gas goes through the graphite tube to remove the volatilized matrix vapors during drying and thermal pretreatment.The pneumatic opening and closing of the furnace simplifies tube changes. The furnace also features a Zeeman-effect Background Correction.A 0.8 Tesla magnetic field oriented longitudinal to the optical path and modulated with a computer controlled waveform is applied to the atomic vapor in the graphite tube. Furnace Autosampler:Standard with the main instrument is installed in front of the furnace unit.Removable sample tray with 88 and 148 sampling positions for sample and reference solutions and 1 overflow container for pipet washing.Minimum sample requirement is about 0.1 mL. Dispensable sample and reagent volume is 1-99 µL,selectable in increments of I µL.Flushing volume 1.3 mL,fixed.The autosampler is powered from the spectrometer and is software-controlled. Features and Benefits: -Automated burner assembly position optimization -Flame gas flows optimization through the Syngistix for AA Software -8-position lamp holder with built-in power supplies for hollow cathode and electrodeless discharge lamps -Automatic Lamp Selection and alignment -Fully enclosed optical system with fiber optic cables and a solid state detector -Built-in fully computer controlled Transversely Heated Graphite Atomizer(THGA)furnace -Zeeman-effect Background Correction for furnace -Deuterium Background Correction for flame -Software controlled AS 900 furnace autosampler PAGE 3 of 5 PerkinElmer' For theBeuer Quotation PerkinElmer Health Sciences Inc. Phone: 1-800-762-4000 710 Bridgeport Avenue Fax:203-944-4904 Shelton, CT 06484-4794 Quotation No.: 22770105 Quotation Valid To: 08/09/2022 To: DEBRA NESS Quotation Date: 06/17/2022 CITY OF ELGIN ITEM I MATERIAL DESCRIPTION TY/EA UNIT PRICE TOTAL Power Requirements:207-253V 47-63Hz,single phase Power Cords included:Integrated power cord with NEMA plug Dimensions:Width 95 cm,Depth 68 cm,Height 64 cm Product Weight: 141 Kg Warranty:Includes PerkinElmer 1 Year Warranty Installation:Required and included Requires but not included:A compatible f imace cooling system,monitor, mouse,keyboard,computer and a Syngistix for AA software package Sales Discount: -22,380.00 52,220.00 52,220.00 2 N3160095 COOLING SYSTEM COMPLETE AA 120V 1 3,360.00 Sales Discount: -1,008.00 2,352.00 2,352.00 3 N 1010307 Dell Windows 10 AA System Controller 1 3,902.00 Sales Discount: -1,170.60 2,731.40 2,731.40 4 N3160523 PmAAcle 900T SS Neb Spares Kit 1 842.00 Sales Discount: -252.60 589.40 589.40 5 N0231014 AA Installation and Familiarization 1 990.00 990.00 6 N3050157 Lumina Hollow Cathode 2 Lamp-Pb 1 852.00 Sales Discount: -255.60 596.40 596.40 7 N9300128 Lead 1,000 µg/mL 2%HNO3 ICP 500 mL 1 132.00 Sales Discount: -39.60 92.40 9240 8 N3050121 Lumina Hollow Cathode 2 Lamp-Cu 1 621.00 Sales Discount: -186.30 434.70 414 7r, 9 N9300114 Copper 1,000 µg/mL 2%HNO3 ICP 500 mL 1 101.00 Sales Discount: -30.30 70.70 7070 PAGE 4 of 5 PerkinElmer' For the Bever Quotation PerkinElmer Health Sciences Inc. Phone: 1-800-762-4000 710 Bridgeport Avenue Fax:203-944-4904 Shelton, CT 06484-4794 Quotation No.: 22770105 Quotation Valid To: 08/09/2022 To: DEBRA NESS Quotation Date: 06/17/2022 CITY OF ELGIN ITEM I MATERIAL DESCRIPTION QTWEA UNIT PRICE TOTAL 10 B0190634 Magnesium Matrix Modifier 1%100 mL I 182.00 Sales Discount: -54.60 127.40 127.40 11 B0190635 Palladium Matrix Modifier 1%50 mL 1 324.00 Palladium Nitrate Modifier,10 g/L Pd(as nitrate)in 15%HNO3. Volume 50m1. Sales Discount: -97.20 226.80 226 S0 12 N9307760 5.8kVA Line Conditioner 208/240V 60Hz l 6,900.00 This Single-Phase Power Conditioner is a dual-output model which can simultaneously protect both high-voltage and low-voltage systems at a less expensive cost and effort than installing two separate conditioners.Whether the electrical noise is generated on the line or by the load,the low impedance isolation transformer of this conditioner protects an instrument system from most problems created by power disturbances. Features and Benefits: -System provides clean power at 208 or 240V for loads up to 24 amps -Let through voltage is less than 10 volts normal mode and less than 0.5 volts neutral-to-ground when tested to ANSMEEE C62.41 Power Requirements:208/240V 60Hz Dimensions:Width 31.8 cm,Depth 45.7 cm,Height 25.4 cm Product Weight:59 kg Warranty:Includes Manufacturer 5 Year Warranty Sales Discount: -2,070.00 4,830.00 4,830.00 13 N0231016 AA ADVANCED ONSITE TRAIN 2-DAY 4 SEATS 1 9,000.00 Sales Discount: -900.00 8,100.00 8,100.00 14 REGDELAA Shipping&Handling fee 1 3,680.00 Sales Discount: -700.00 2,980.00 2,980.00 1 PAGE 5 of 5 PerkinElmer` For McBeuer Quotation PerkinElmer Health Sciences Inc. Phone: 1-800-762-4000 710 Bridgeport Avenue Fax:203-944-4904 Shelton, CT 06484-4794 Quotation No.: 22770105 Quotation Valid To: 08/09/2022 To: DEBRA NESS Quotation Date: 06/17/2022 CITY OF ELGIN ITEM MATERIAL DESCRIPTION TY/EA I UNIT PRICE TOTAL Total Net Price in USD: 76,341.20 For your convenience,most orders placed with PerkinElmer can be easily tracked using our Self Service Portal located at http://selfservice.perkineimer.com/.Simply enter your sales order number(provided with your order confirmation information)in combination with your purchase order number or postal code,and discover the current status of your shipment! Did you know that you can order selected products online at www.perkineimer.com/shop? The amount displayed includes tax.The City is a tax-exempt governmental body. Includes installation unless otherwise stated above. Includes and one-year warranty(parts, labor and travel)on NEW instrumentation only. Warranty for USED items must be purchased separately. Terms subject to credit approval. Doug Sterner ATTACHMENT B General Terms and Conditions of Sale -Global (English) Applicability. As used herein, "PerkinElmer" shall mean the entity listed on the document to which these terms are attached and/or referenced. 3.Inspection. Acceptance and Return of Products. 3.1 Customer shall inspect Products immediately upon receipt and shall, within five (5) business days of receipt (the "Inspection Period"), give written notice to PerkinElmer of any claim that Products shipped constitute Nonconforming Products. "Nonconforming Products" means only the following: (i) Product shipped is different than specified on the Customer's purchase order; or (ii) Product is damaged. Customer will be deemed to have accepted Products unless it notifies PerkinElmer as indicated herein and furnishes evidence as required by PerkinElmer. If Customer receives Products where defects or nonconformities are not apparent upon initial examination or are not discovered until after the Inspection Period has passed, such Products shall be subject to the warranty set forth in Section 9 below. 3.2 If Customer notifies PerkinElmer of any Nonconforming Products in writing within the Inspection Period, PerkinElmer shall, in its sole discretion, (i) replace such Nonconforming Products, or (ii) credit or refund the payments made for such Nonconforming Products. PerkinElmer will provide to Customer a return authorization number that must be included with the return packaging for a return to be accepted. Customer shall ship, at PerkinElmer's expense, Nonconforming Products to the facility designated by PerkinElmer. If PerkinElmer exercises its option to replace Nonconforming Products, PerkinElmer shall, after receiving Customer's shipment of Nonconforming Products, ship to Customer the replaced Products to the Delivery Point. Customer acknowledges and agrees that the remedies set forth in this Section are Customer's exclusive remedies for the delivery of Nonconforming Products. Customer will be liable for restocking charges in the event Products are returned to PerkinElmer which are not Nonconforming Products. 4.Installation and Site Preparation. 4.1 Installation of Products shall be billed as a separate line item, unless otherwise expressly stated. If Customer fails to properly prepare the site for installation, PerkinElmer may impose a service charge to cover the lost time of PerkinElmer's service personnel. If PerkinElmer is unable to perform installation within three (3) months of a Product's shipment date as a result of Customer's failure to prepare the site as required, Customer will be responsible for any costs associated with such delay, including without limitation, any required hardware, software and firmware updates. 4.2 Customer shall (i) provide access to Customer's premises and facilities as may reasonably be requested for purposes of performing installation; (ii) provide materials, resources or information to carry out installation, including without limitation, power, water, drainage, air, bottled gases, items to uncrate and transport Products, or other reasonably requested resources; and (iii) have all necessary licenses, permits and consents prior to date of Product delivery. 4.3 PerkinElmer's sales and service personnel are not authorized to enter into any indemnity, access, confidentiality or other agreements on behalf of PerkinElmer. 8. Software. "Software" means the object code form of PerkinElmer's software and documentation related thereto, including without limitation any control or instrument software included with the Product. PerkinElmer provides all Software under separate terms and conditions and subject to Customer's assent to such terms and conditions. Customer understands and agrees that the Software is not being provided as a "work for hire" under any applicable local, state, federal, international or other laws and this is not an agreement for the sale of the Software. By downloading, installing, using, unwrapping, or issuing a purchase order for the Software, Customer agrees that the Software is accepted as delivered and agrees to the terms and conditions applicable thereto. 9. Limited Warranty. The warranties set forth in this Section 9 are the sole and exclusive warranties provided for Products purchased hereunder and shall only apply to Customer as the original purchaser. The "Warranty Period" shall be the period of time that the warranty is valid as specified for each of the warranties listed below. 9.1 Instruments. PerkinElmer warrants that its instrument Products will substantially conform to PerkinElmer's published specifications in effect as of the date of shipment and will be free from defects in materials and workmanship, when subjected to normal, proper and intended usage, except that no warranty is provided for any used, refurbished or previously owned Products. Unless a different period is specified in the applicable quotation,the Warranty Period shall be (i) one (1) year from the date of shipment to Customer, or (ii) if the Product requires installation by PerkinElmer certified service engineers,the earlier of(x) one (1) year from the date of installation or (y) fifteen (15) months from the date PerkinElmer ships the Product to Customer. This warranty applies only to Products within the country of original delivery. Products transferred outside the country of original delivery, either by PerkinElmer at the direction of Customer or by Customer's actions subsequent to delivery, may be subject to additional charges prior to warranty repair or replacement of such Products based on the actual location of such Products and PerkinElmer's warranty and/or service surcharges for such location(s). 9.1.1 Spare Parts. Parts replaced during a warranty repair may be retained by PerkinElmer and shall become the sole and exclusive property of PerkinElmer upon repair or replacement. PerkinElmer warrants replacement parts for the longer of (i) the remaining term of the original Warranty Period of the Product in which the part is installed or (ii) ninety (90) days from the date of replacement. This warranty applies only to parts installed by PerkinElmer or a third party authorized by PerkinElmer. 9.2 Reagents, Consumables. & Other Goods. For Products that are consumables, reagents or other goods, PerkinElmer warrants that, at the time of shipment, all such Products shall conform to PerkinElmer's published specifications. Unless otherwise set forth in the Product documentation, quotation or price list, the Warranty Period shall be for the earlier of: (a) thirty (30) days from the date of delivery of such Products; (b) the expiration or"use by" date listed on the Product; (c) the half-life of the radioisotope contained in the Product; or (d) the Product's specified number of uses. This warranty shall only be valid if such Products are stored in accordance with PerkinElmer's instructions and used in accordance with the published specifications. 9.2.1 Custom Reagents. PerkinElmer shall use commercially reasonable efforts to meet all specifications requested by Customer for Products delivered pursuant to its custom labeling/synthesis service offerings. PerkinElmer makes no warranties related to Products generated from such custom services, and Customer shall be bound to pay for all custom reagent Products ordered hereunder, regardless of whether the requested specifications are met. 9.3 Software & Firmware. PerkinElmer warrants that Software (whether embedded in a Product or licensed separately) and firmware will substantially contain the functionality described in PerkinElmer's program manuals and, when properly installed and operated on a computer meeting the specifications specified therein, will substantially perform in accordance therewith; provided, however,that PerkinElmer does not warrant that the operation of the processor, Software or firmware will be uninterrupted or error-free. The Warranty Period shall be for ninety (90) days from the date of delivery. 9.4 Exclusions. The following are excluded from the warranties in Sections 9.1 through 9.3: 9.4.1 A Product's loss, damage, defect or failure to perform due to: (i) any installation, modification, calibration, repair, or servicing of the Product, including but not limited to modifications, repairs to or servicing of any hardware, firmware or Software incorporated in or connected to the Product, not performed by PerkinElmer or a third party authorized by PerkinElmer; (ii) any accidents occurring at Customer's site, including but not limited to,those caused by flood, fire, or other acts of nature; (iii) the negligence or willful misconduct of Customer or a third party; (iv) any movement of a Product to a location other than the location of original installation, unless such move is performed by PerkinElmer; (v) improper or inadequate maintenance; (vi) Customer or third party supplied hardware, software, interfaces, reagents, parts, consumables or other supplies; (vii) any combination or use of the Products with any incompatible equipment or ancillary products that may be connected to such Products; (viii) use or operation of a Product: (a) outside of the applicable Product specifications, or (b) inconsistent with the user manual provided with the Product; or (ix) improper site preparation. 9.4.2 PerkinElmer provides no warranties on any third party manufactured products. To the extent legally permissible, PerkinElmer will pass through to Customer any warranties provided by a third party manufacturer. 9.4.3 Any consumable or customer maintained components, including without limitation, chromatography columns, filaments, energy sources, lamps, power amplifier tubes, graphite tubes, sample cell holders, burner and furnace chambers, nebulizers, items in the sample path, valves,tips and tubing, other similar parts with limited life expectancy referenced in the Product's applicable operating manual, or any other item intended to be replaced by a customer. 9.5 Remedies. 9.5.1 PerkinElmer shall not be liable for breach of the warranties set forth in Sections 9.1 through 9.3 unless: (i) Customer gives prompt written notice and a reasonable description of the defective Products to PerkinElmer during the Warranty Period; (ii) if applicable, PerkinElmer is given a reasonable opportunity after receiving the notice to examine such Products and Customer (if requested by PerkinElmer) returns such Products to PerkinElmer's place of business at PerkinElmer's cost for the examination to take place there; and (iii) PerkinElmer reasonably verifies Customer's claim that the Products are defective. 9.5.2 As Customer's sole and exclusive remedy for breach of the warranties in Sections 9.1 through 9.3, PerkinElmer agrees either to repair or replace, at PerkinElmer's sole option, any part or parts of such Products or Software which prove(s) to be defective within the applicable Warranty Period. Alternatively, PerkinElmer may at any time, in its sole discretion, elect to discharge its warranty obligations hereunder by accepting the return of any defective Product or Software pursuant to the terms set forth herein and refunding the purchase price paid by Customer. 9.5.3 THE REMEDIES SET FORTH ABOVE SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES AND PERKINELMER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 9.1 THROUGH 9.3. 9.6 Correction of Defects during Warranty Period. 9.6.1 PerkinElmer may attempt to diagnose and resolve defects over the telephone or electronically. Customer must follow the problem determination, resolution, and procedure that PerkinElmer specifies. If applicable, PerkinElmer may require the return of a specific part to its depot for service or to assist in problem determination. If PerkinElmer determines on-site work is required, a service technician will be scheduled. If Customer requests on-site work when a defect could have been remedied remotely, or if PerkinElmer responds to Customer's notice of defect and no defect covered under the applicable warranty is found, PerkinElmer is entitled to compensation at its then standard rates for any work performed and costs it incurred due to Customer's request. Failure to install and use available remote connectivity tools and equipment for direct problem reporting, remote problem determination, and resolution may result in increased response-time and additional costs to Customer. 9.6.2 If PerkinElmer determines that Products for which Customer requested warranty services are not covered by the applicable warranty and PerkinElmer provides repair services or replacement parts not covered by such warranty, Customer shall be responsible for payment of all costs for investigating and responding to such warranty service request at PerkinElmer's then prevailing time and materials rates. 9.7 Disclaimer. EXCEPT AS SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PERKINELMER EXPRESSLY DISCLAIMS AND MAKES NO OTHER WARRANTIES WHATSOEVER WITH RESPECT TO PRODUCTS AND SOFTWARE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY (A) OF MERCHANTABILITY; (B) OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. FURTHER, PERKINELMER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. 10.Infringement Indemnification. PerkinElmer shall indemnify Customer from and against any claim, suit, action, or proceeding brought against Customer by a third party to the extent it is based on an allegation that a Product directly infringes any patent, copyright, trademark, or other proprietary right enforceable in the country in which the Product is delivered to Customer, or misappropriates a trade secret in such country (a "Claim"). Indemnification for a Claim shall consist of the following: PerkinElmer shall (a) defend or settle a Claim at its own expense, and (b) pay any judgments finally awarded against Customer under a Claim or any amounts assessed against Customer in any settlements of a Claim. PerkinElmer's obligations under this Section are conditioned upon Customer (i) giving prompt written notice of a Claim to PerkinElmer, (ii) permitting PerkinElmer to retain sole control of the investigation, defense or settlement of a Claim, and (iii) providing PerkinElmer with such cooperation and assistance as PerkinElmer may reasonably request from time to time in connection with the investigation, defense or settlement of a Claim. Notwithstanding the foregoing, PerkinElmer shall not settle any Claim on any terms or in any manner that would (i) require Customer to make a payment which PerkinElmer is not obligated by this Agreement to pay on behalf of Customer, or (ii) require Customer to make any admission against its interest, without Customer's express written consent. Notwithstanding the foregoing, PerkinElmer shall have no obligation hereunder to defend Customer against any Claim (a) resulting from use of the Product other than as authorized in this Agreement, (b) resulting from a modification of the Product other than by PerkinElmer, (c) based on Customer's use of the Product after PerkinElmer recommends discontinuation because of possible or actual infringement, (d) based on designs, specifications or modifications communicated by Customer which PerkinElmer satisfied, (e) based on Customer's use of a superseded or altered release of Software if the infringement would have been avoided by use of a current or unaltered release of e Software made available to Customer, or (f) to the extent such Claim arises from or is based on use of the Product with other products, services, or data not supplied by PerkinElmer if the infringement would not have occurred but for such use. If, as a result of a Claim, Customer must stop using any Product ("Infringing Product"), PerkinElmer shall at its expense and option either (1) obtain for Customer the right to continue using the Infringing Product, (2) replace the Infringing Product with a functionally equivalent non-infringing product, (3) modify the Infringing Product so that it is non-infringing, or (4) accept the return of the Infringing Product and refund the purchase price paid for the Infringing Product, pro-rated over a sixty (60) month period from the date of initial delivery of such Product and less a reasonable amount for use, damage or obsolescence. 11.Limitation of Liability. IN NO EVENT SHALL PERKINELMER BE LIABLE TO CUSTOMER FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PERKINELMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. The aforementioned limitations of liability shall not apply to infringement claims under Section 10 or liability resulting from PerkinElmer's gross negligence or willful misconduct. 12.Miscellaneous. 12.1 Distribution & Use Restrictions. Products sold hereunder are being provided to Customer as the end-user. Customer is not permitted to purchase Products for resale. Further, and without limiting the foregoing, Customer shall not (i) transfer, sell, or otherwise distribute Products to any third party, whether alone or in combination with other materials, (ii) modify Products for resale, or (iii) use Products to manufacture commercial products, in each case without prior written approval from PerkinElmer. 12.2 Regulatory. If purchased hereunder, Customer agrees to use IVD Products in accordance with the Product's Intended Use as defined in the documentation and specifications provided with such Product. Where Product is labeled with For Research Use Only or a similar labeling statement and is not for use in diagnostic procedures, Customer acknowledges that the Product has not been approved, cleared, or licensed by the United States Food and Drug Administration or any other regulatory entity, whether foreign or domestic, for any specific intended use, whether research, commercial, or diagnostic. 12.3 Compliance with Law. Each party shall comply with all applicable laws, regulations and ordinances in performing its obligations under this Agreement. Each party shall maintain in effect all licenses, permissions, authorizations, consents and permits needed to carry out its obligations under this Agreement. Customer acknowledges that the Products and related technical information are subject to the applicable U.S. export control regulations and Customer shall comply with all applicable restrictions and prohibitions on sale,transfer, export, shipment or other supply of Products, directly or indirectly,to any person, entity or country, or for any activity. Customer shall provide to PerkinElmer any documentation necessary for shipment of Products to the Delivery Point. 12.4 Cancellation. Unless otherwise stated on the quotation, all orders once placed are non-cancellable, unless PerkinElmer consents to such cancellation in writing and Customer pays any applicable cancellation and/or restocking charges. 12.5 Waiver. No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. 12.6 Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder) when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the impacted party, including, without limitation: acts or omissions of the other party; acts of God, including flood, fire, earthquake, or explosion; mandatory or voluntary compliance with governmental regulations, requests, or actions; war, invasion or hostilities (whether war is declared or not); terrorist threats or acts, riot, or other civil unrest; national emergency; revolution or insurrection; epidemic; lockouts, strikes or other labor disputes (whether or not relating to either party's workforce); restraints or delays affecting carriers; inability or delay in obtaining raw materials or supplies of adequate or suitable quality; or telecommunication breakdown or power outage. 12.7 Assionment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of PerkinElmer. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. 12.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. 12.9 SeverabilitK Amendment and Modification. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.