Post-Warranty Services Terms & Conditions(b)

1.
AgreementThis Post-Warranty Service Agreement (“Agreement”) is between the customer(“Customer”) identified in the Quotation (as defined below) incorporated herein andLeica Biosystems Division of Leica Microsystems Pty Ltd (“Leica”). By submitting
a purchase order for post-warranty services including support, repair or maintenance(“Services”), as applicable, Customer agrees to the following terms and conditions.
Any other terms and conditions submitted by the Customer on any purchase order are
hereby expressly excluded. In the event of a conflict between the terms of the
Quotation and the Agreement, the terms of the Quotation will prevail to the extent of
the inconsistency.
2.
Definitions“Contract Period” shall mean the time period of coverage for the applicable Services as
set forth for each Product(s) on the Quotation.
“Hardware Upgrades” shall mean an enhancement to improve Product performance,
safety, or functionality that may be subject to additional fees.
‘‘Order” shall mean any transactional document or purchase order under which Customer
may purchase a Service Package for a Product. All Orders are subject to the terms andconditions in this Agreement.
“Preventative Maintenance” means the scheduled standard maintenance inspections
provided on a Product.
“Products” shall collectively refer to and include the following: “Consumables” which
include disposable materials and other Products which may be used in conjunction with
Hardware; “Hardware” means the equipment, system, or other instruments provided
and/or manufactured by Leica and all console firmware or software embedded therein;“Reagents” means liquid materials in its application state which may be used inconjunction with Products; and “Software” means all programs, routines, codes,
compilers, applications, tools, algorithms, APIs and development kits, in whatever formor format Leica designates to provide.
“Quotation” shall mean the proposal for Services issued by Leica to Customer, which sets
forth pricing, Service Package selections and applicable Contract Periods for each Productwhich incorporates these Services Terms and Conditions.
“Service Request” shall mean a customer initiated request for assistance to Leicatechnical support using established methods of communication including; email, phone, or
web based notification.
“Service Package” shall mean the complete service offering set forth in the Quotation.
Service Packages may be subject to change or customization, at Leica’s sole discretion.
“Software Updates” shall mean bug fixes, patches, and minor enhancements to theSoftware currently licensed to Customer that are provided to Customer at no charge during
the Contract Period.
“Software Upgrades” shall mean functionality beyond existing Software applications
currently licensed to Customer and may be subject to additional fees.
“User Maintenance” shall mean and include all standard and routine operator
maintenance required to be performed by Customer as set forth in the applicable Leica
user manual provided with or made available for each Product.
3.
Technical and On-site Support
Leica (or its authorized service agent) will provide Services Monday through Friday,
excluding Leica observed holidays, during normal working hours of 8:30am to 5:00pm
local time. Subject to the availability of personnel, after-hours support is available uponrequest at an additional charge. Customer acknowledges that the Products may not be
available for use during Preventative Maintenance and service visits. Preventative
Maintenance will be scheduled upon request by Customer. Leica, at its option, will perform
Services at either the Customer’s facility or the nearest Leica authorized service center or
facility. While every effort will be made to render Services promptly, Leica does not makeany guaranty regarding specific response times to a Service Request, or Product up timeminimums, all of which may be available for purchase under separate contract.
4.
Additional Services
Services which are not otherwise included in a specific Service Package, such as (but notlimited to) relocation services, are available for purchase under separate contract.
5.
Eligibility
In the event that there has been a gap of Leica service coverage for any Product for a period
greater than thirty (30) days, such Product may be subject to inspection, certification, andup-front Preventative Maintenance, at Customer’s expense, to ensure that such Productmeets Leica’s standards for maintenance and support. Leica, at its sole discretion, shalldetermine Product eligibility for service.
6.
Customer Responsibilities
During the Contract Period, Customer shall:(a)Ensure that the Product is operated at all times by users who have received
Product training in accordance with the applicable Leica User Manual.
(b) Perform all required User Maintenance and schedule annual Preventative
Maintenance visits with Leica.
(c)
Notify Leica immediately through Leica’s established methods ofcommunication of any Product malfunction and provide a full description of
the issue.
(d) Provide Leica with notice of its intent to move a Product.
(e)Grant Leica remote access to provide remote support.
(f)
Maintain and update computer virus definitions as damages resulting fromcomputer related viruses are excluded from this Agreement.
7.
Service Visit Requirements
Prior to Leica performing any Services, Customer shall:(a)Provide Leica full and free access to the Products requiring Services at thetime(s) scheduled.
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Promptly notify Leica of any hazardous or dangerous environments andinstruct and assist Leica in preventing exposure.
(c)
Ensure that any third-party auxiliary equipment which is affixed to or
positioned near the Product is removed or adequately protected. Leica shallnot be responsible for any accidental damage in the event Customer fails to
remove or protect such auxiliary equipment.
(d) Implement safeguards to protect all programming, programs, data and otherremovable storage media. Leica shall not be responsible for any accidental
damage in the event Customer fails to implement the necessary safeguards
to protect all programming, programs, data and other removable storage
media.
(e)
Ensure an authorized Customer representative is available to sign Leica
applicable documentation upon Services completion. If an authorized
Customer representative is not available to sign Leica applicable
documentation upon Services completion and Customer requires Leica toperform additional work and/or attendance, there may be additional costs
payable by the Customer.
8.
Pricing(a)Fees. All Service fees, as set forth on the Quotation, shall remain firm for theduration of the Contract Period. Fees shall be invoiced for additional Services
as required.
(b) Payment. Payment is due net thirty (30) days from date of invoice unlessotherwise stated in the Quotation.
(c)Default in Payment. If Customer fails to make any payment to Leica on therelevant payment due date, Leica shall be entitled to charge for a latepayment interest at the discount rate charge by Commonwealth Bank ofAustralia plus two percent (2%) per annum or the highest rate allowed bylaw, whichever is higher, on overdue accounts. Upon default, without
prejudice and in addition to such other rights Leica may have under thisAgreement and any applicable laws, Leica shall be entitled to (i) suspensionof the supply of all Products and/or Services not fully paid for by the
Customer and (ii) reimbursement of all out-of-pocket and consequential
expenses incurred by Leica in collecting any payments (plus the applicableinterests) due, including (but not limited to) any attorneys’ fees andcollections fees. In addition, Leica shall have the right to demand advancepayment for future orders or to require irrevocable and confirmed letters ofcredit to be opened. For the avoidance of doubt, Leica will not be liable to
the Customer for any losses and damages suffered by the Customer arisingout of the suspension due to the Customer’s default.
(d) Taxes. All Service fees are exclusive of any applicable, sales tax, goods andservices taxes, value added tax, or any similar taxes or other charges.
Customer is responsible for all taxes, duties, fees and expenses imposed byfederal, state or local governmental entities, applicable to the Services
furnished hereunder or in lieu thereof, Customer shall provide Leica with a
tax exemption certificate acceptable to and considered valid by the applicabletaxing authorities.
9.
Termination(a) This Agreement shall be effective and shall continue in full force and effectthroughout the Contract Period, unless otherwise terminate in accordancewith the terms and conditions of this Agreement.
(b) For Material Breach. Termination of this Agreement by Leica will bepermitted in the event of a Material Breach that if possible, to cure, remains
uncured sixty (60) days after written notice by Leica to the Customer.. Leica
may terminate this Agreement immediately upon written notice to theCustomer in the event of an uncurable Material Breach. A “Material Breach”
is defined as (a) the failure of the Customer to fully comply with its
obligations under this Agreement; (b) the making of assignment for the
benefit of creditors by the Customer; (c) the institution of bankruptcy,
reorganization, liquidation or receivership proceedings by or against theCustomer; and (d) insolvency of the Customer.
(c) Biohazard Contamination. In the event a Product comes in contact with anagent classified Biohazard Level II or above by the Australian Government
Department of Health or the Department of Health of the relevant State
Government, Customer shall immediately notify Leica and Leica, at its sole
discretion, shall determine whether a remedial course of action to provide
Services is acceptable.
(d) Beyond Repair. In the event that Leica determines that the cost to repair a
Product exceeds its fair market value, Leica has the sole right to reject theCustomer’s Order and terminate this Agreement. In such instance, Leica may
refund, after deducting all costs and expenses incurred by Leica inperforming the works up to the effective termination date, the unutilised
portion of the fees already paid by Customer during the applicable Contract
Period.
10. Standard of Service
Leica represents and warrants that the Services provided under this Agreement will be
performed in a workmanlike and professional manner with reasonable skill, care anddiligence, all in accordance with standard industry practices and in compliance with allapplicable laws. All Services shall be provided by an authorized Leica representative
subject to the fees set forth under the applicable Quotation. Services, including repair parts,
shall be warranted for a period of ninety (90) days from the original service date or theoriginal installation date for the relevant repair part, as applicable. For the avoidance of
doubt, warranty period does not renew upon provision of a replacement of repair parts
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and/or re-performance of services. Customer’s sole remedy for breach of warranty shallbe a re- performance of the Services. Leica does not warrant that the Services will render a
Product to be error free or that continued use and operation of the Product will beuninterrupted. The foregoing warranties are exclusive and in lieu of all other warranties,
whether written, oral, express, implied, or statutory. NO IMPLIED STATUTORYWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULARPURPOSE SHALL APPLY.
11. Exclusions(a) Service support shall not apply to any defect or performance deficiency on
a Product (including failure to conform to Product descriptions or
specifications) or damage thereto which results, in whole or in part, from:(1) neglect, abuse, misapplication, accident, improper storage or handling of
the Product by Customer, its employees, agents, or contractors; (2) failureof Customer to prepare or maintain the site or provide power requirements
or operating environmental conditions in compliance with any applicable
instructions or recommendations of Leica; (3) adverse power conditions orenvironmental conditions such as erratic power, voltage spikes, RF ormagnetic interference, HVAC failure or sprinkler system failure, lightening,static electricity, fire, storm, vandalism, water damage, or other casualty
beyond the control of Leica or its representatives, acts of God, of damages
ordinarily covered by insurance; (4) absence of any Product, component, oraccessory recommended by Leica but omitted or removed at Customer’s
direction; (5) any misuse, alteration or damage to the Product by persons
other than Leica; (6) the combination, operation, or use of Products withhardware, software, and/or consumables not supplied or authorized inwriting by Leica; (7) improper or extraordinary use of the Product, improper
maintenance of the Product, failure to maintain the Product or failure tocomply with any applicable instructions or user manuals provided by Leica;(8) any servicing performed, repairs attempted, or Product relocation by
personnel not authorized in writing by Leica; (9) any modification, alteration,or variation to Product to comply with the requirements or regulations of any
governmental body or agency; (10) any change to operating system software(“OS”) including the third-party original equipment manufacturers’
discontinuance of support of the OS (i.e., Microsoft). Customer is
responsible for expenses associated with changes to the OS, including
software licensing fees, Hardware modifications and/or additional Hardware
costs and technical support fees associated with implementing a superseding
OS. In the event that Customer elects to continue using an unsupported OS,
Customer shall do so at its own risk and expense, and Leica shall have no
obligation to support Product failures proximately resulting from theunsupported OS.
(b) In the event that the Customer requests Leica to perform maintenance and/or
repair services on the Product excluded from the Services due to any reason
set out in Clause 11(a) above, Leica shall have the sole discretion to decide
whether to accept such request and if Leica agrees to accept, Leica will
charge the Customer for additional fees and/or charges in respect of theworks to be performed by Leica. Leica will perform such services after the
Customer’s acceptance of the additional fees and/or charges as well asdeliverables timeline.
12. Product Improvements. Leica, at its sole discretion, may issue, routinely withoutschedule or commitment, Software Updates, Software Upgrades and Hardware Upgrades.
Certain Software Upgrades and Hardware Upgrades may require Customer to purchaseadditional equipment or hardware.
13. Replacement Parts
Leica, at its sole discretion, will determine if replacement parts are required and reserves
the right to use factory refurbished material or parts for repairs of Product under thisAgreement. Labor to install any replacement parts is included as part of the Service
Package. All parts which become subject to removal and replacement shall become theproperty of Leica. Consumables and Reagents are not eligible for replacement under thisAgreement.
14. De-identification of Personal Data
The Customer acknowledges that Leica would not require access to any Personal Data,
including patients’ Personal Data, at any time in performance of its obligations under thisAgreement. Where applicable, in the event any data is required to remedy technical issues
and/or performance of the Products (“Permitted Purposes”), the Customer agrees that prior
to providing or granting access to such data to Leica, the Customer shall be responsible toensure all Personal Data in such data, if any, are De-Identified and Coded to ensure thatthe identity of the individual to whom the data pertains is not identifiable to and is nottraceable by Leica and/or Leica’s Personnel. The Customer further represents that it hasestablished policies and procedures in place to prevent the release of individuals’ Personal
Data and is responsible for informing and ensuring its employees to comply with theCustomer’s obligations in this clause. The Customer shall fully indemnify Leica and its
affiliates against any and all claims, losses or damages arising from or related to noncompliance of this clause including but not limited to costs on a solicitor/attorney-client
basis.
For the purpose of this clause,(a)“Personal Data” means any information, data and/or opinion relating to andabout an identified or reasonably identifiable natural person;(b) “De-Identified” means the identity of the individuals is not known to andensure data is not traceable by Leica and/or Leica’s Personnel; and(c)“Coded” means that a number, letter, symbol, or combination thereof (i.e. thecode) has replaced identifying individual information (such as name or

national registered identification number); and“Leica’s Personnel” means employees, agent and/or contractor of Leica
associated with the performance of its obligations under this Agreement.
15. Limitation of Liability
EXCEPT AS OTHERWISE REQUIRED BY LAW, IN NO EVENT WILL LEICA BE
LIABLE TO CUSTOMER OR ANY LOST REVENUES, LOST PROFITS, SPECIAL,INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ECONOMIC LOSS,DOWNTIME OR UNAVAILABILITY OF A PRODUCT AS A RESULT OF A
MALFUNCTION, MAINTENANCE OR REPAIR, OR PROPERTY DAMAGE
INCURRED BY THE OTHER PARTY, NEGLIGENCE, STRICT LIABILITY, OR ANYOTHER LEGAL THEORY, EVEN IF LEICA HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT OF LIABILITY, LEICA’SMAXIMUM LIABILITY HEREUNDER WILL NOT EXCEED THE PRICE OF THE
PRODUCTS OR SERVICES FURNISHED BY LEICA GIVING RISE TO THE
CLAIM.
Leica’s liability (if any) under these Terms and Conditions for any loss and/or damage
incurred by the Customer and/or any third party will be reduced proportionately to theextent that any fault, negligent act, or omission of the Customer (or its subcontractor, agent,or personnel) and/or third party contributed to those loss, damage, expense, or liability.
Leica’s rights and remedies in these terms are in addition to, and not in lieu of, any otherrights or remedies Leica may have at law or in equity.
16. Remedies
Without limiting its remedies under existing law, Leica may, in the event of a Material
Breach by Customer, and in its sole discretion, pursue any or all of the following remedies:(a) suspend or cancel its performance hereunder, including any pending Services; (b)declare all unpaid balances, payments and expenses due or to become due hereunder
immediately due and owing (c) terminate this Agreement without additional liability or
obligation to Customer; (d) seek any other cumulative remedies at law or in equity or (e)exercise any all rights and remedies available to a secured creditor under the applicablelaws. The foregoing remedies are cumulative, and may be exercised by Leica, in whole orin part, at Leica's sole discretion. The substantially prevailing party shall be entitled to its
attorneys’ fees, costs, and expenses (including expert expenses) in connection with any
claims, causes of action or litigation.
17. Compliance
Customer shall comply fully with all applicable laws, rules and regulations, including thoseof the United States, Leica’s home country (if not the United States), and any and all otherjurisdictions globally which apply to the use of the Instrument(s) and/or Customer’sbusiness activities in connection with this Agreement.
18. Governing Law
This Agreement is governed by and construed in accordance with the laws of New South
Wales, Australia, without regard to conflicts of laws provisions. The parties consent to thesole and exclusive venue and jurisdiction of the courts in New South Wales, Australia. The
United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Any action by Customer for loss or damage arising from or related to the Products and/or
Services must be commenced within the earlier of one (1) year from the date of delivery or
occurrence of the event, or such claim will be forever barred. If Leica substantially prevails
in any legal dispute, Customer shall pay all reasonable costs incurred by Leica, including
but not limited to collection costs, attorneys’ fees and costs of legal action.
19. Force Majeure
Except as expressly stated in this Agreement, neither party shall be liable for any failure
to perform hereunder (other than the payment of sums due and owing) due to labor strikes,
lockouts, fires, floods, water damage, pandemic, riots, government acts or orders,interruption of transportation, inability to obtain material upon reasonable prices or terms,
or any other causes beyond its control.
20. Severability; Waiver
In the event that any one or more provisions contained herein (other than the provisions
obligating Customer to pay Leica for the Services) shall be held by a court of competentjurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality andenforceability of the remaining provisions contained herein shall not in any way beaffected or impaired thereby. A party’s failure to enforce, or waiver of a breach of, any
provision contained herein shall not constitute a waiver of any other breach or of suchprovision.
21. Notices
Any notice or communication required or permitted hereunder shall be in writing and shallbe deemed received three days after being sent via registered mail with return receipt
requested, by overnight mail, by courier, by first-class mail, postage prepaid, or via email(with evidence of receipt required) at the addresses specified herein for the respective
parties or at such other address as either party may from time to time designate to the otherin writing.
22. Assignment
This Agreement may not be assigned by either party without the prior written consent of
the other party, whose consent shall not be unreasonably withheld. Notwithstanding any
provision of this Agreement to the contrary, either party shall have the right to assign orotherwise transfer its interest under this Agreement, without consent of the other party, toany of its affiliated entities or to any entity to which a party may sell, transfer, convey,
assign or lease substantially all of the assets or properties used in connection with its
performance under the Agreement. Any other assignment of the Agreement without theexpress written consent of the other party will be invalid.
23. Independent Contractor
Leica is performing the Services as an independent contractor and not as an employee ofCustomer and none of Leica’s personnel shall be entitled to receive any compensation,(d)Page 2 of 3
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benefits or other incidents of employment from Customer. Nothing in this Agreement shallbe deemed to constitute a partnership or joint venture between Customer and Leica, norshall anything in this Agreement be deemed to constitute Leica or Customer the agent of
the other. Neither Leica nor Customer shall be or become liable or bound by any
representation, act or omission whatsoever of the other.
24. Confidentiality
This Agreement, an Order and any material transmitted herewith may contain information
confidential or proprietary to either party, its subsidiaries or affiliates (“Confidential
Information”) and such information is not to be used by the receiving party other than the
purpose for which it was transmitted by the disclosing party. Each party shall (i) hold suchinformation in strictest confidence and not disclose such information to third parties
without prior, written consent of the disclosing party and (ii) not collect, access, retain use
or share the Confidential Information other than for performance of the Services under thisAgreement.
25. Intellectual Property Rights
With the exception of any pre-existing Intellectual Property Rights or any open-source
software, all Intellectual Property Rights in any material created in the performance of its
obligations under this Agreement vests in, or is hereby transferred or assigned to, Leica
immediately upon creation.
Nothing in these Agreement confers or is deemed to confer on the Customer any licence,right or other interest in any intellectual or other property or rights comprised in the
products or in any designs, drawings or specification relating to the products, which at
all times, as between Leica and the Customer, are vested in Leica.
26. Modifications
No amendments or additions to this Agreement is binding unless made in writing andsigned by the duly authorized representatives of each party.
27. Contra Proferentem
The rule of construction that in the event of any uncertainty in any provision in any
agreement, such agreement shall, in construing/interpreting the uncertainty, be construed
or interpreted against the drafter of such agreement, shall not be applicable to thisAgreement.

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