Service Plan Terms and Limitations
Illumina’s Service Plans are subject to the following terms, conditions, and limitations.
1.
Definitions. “Covered Hardware” means those portions of
the Hardware that are covered by a Service Plan purchased byPurchaser hereunder. “Current Specifications” means Seller’s written
specifications for the Covered Hardware that apply to such Covered
Hardware as provided in the Service Plan that is purchased hereunder,
but only if the purchased Service Plan provides that the Covered
Hardware will conform to current specifications rather than theOriginal Specifications. “Purchaser” means the person or entity
acquiring the Service Plan from Seller. “Documentation” means
Seller’s user manual, package insert, and similar documentation, for the
Covered Hardware in effect on the date that such Covered Hardware
shipped from Seller. Documentation may have contained additionalterms and conditions that are hereby incorporated herein by reference.
Documentation may have been provided (including by reference to a
website) with the Covered Hardware at time of shipment or provided
electronically from Seller. “EULA” means the end user license
agreement for Software. “Facility” means the physical address where
Covered Hardware is located. “Hardware” means Seller branded
instruments, accessories, or peripherals. “Original Specifications”
means Seller’s written specifications for the Covered Hardware ineffect on the date that such Covered Hardware shipped from Seller.
“Original Terms” means the Seller terms and conditions of sale ineffect on the date the Covered Hardware was shipped from Seller
setting forth the terms and conditions of Purchaser’s purchase and useof such Covered Hardware, components thereof, and Software.
“Quotation” means a written quotation provided by Seller to Purchaser
for the Service Plan. “Seller” means the entity selling the Service Plan
hereunder. The Selling entity is identified on the quotation, orderacknowledgment or similar communication, or Seller website if theorder is being placed electronically at Seller’s website.
“Specifications” means the Current Specifications or the OriginalSpecifications, as applicable; provided that, Specifications shall in allcases refer to the Original Specifications unless otherwise set forth in
the Service Plan. “Site” means the smallest definable room that
contains the Covered Hardware. “Software” means Seller branded
software provided by Seller with the Covered Hardware. All Software
is licensed and not sold and may be subject to additional terms found in
the Software’s end user license agreement. “Term” means the length of
the term of the Service Plan.
2.
Term. All Service Plans are for a period of 12 months, unlessotherwise agreed to in writing by Seller or as set forth in the relevant
Quotation.
3.
Response Time and On-site Support. Seller will use
commercially reasonable efforts to respond to Purchaser’s requests forservice within the time period specified for the relevant Service Plan as
listed in the Quotation or on Seller’s website (available athttps://support.illumina.com/warranties/warranties.html). All requests
for service must be made through Seller’s customer support
organization (“Purchaser Solutions”). Please refer to Seller’s website
for Purchaser Solutions contact information. Seller reserves the right toprovide service and support by any method in its sole discretion,
including but not limited to, remote instruction via telephone, Internet
or email, mailing to Purchaser replacement parts or test equipment,
exchanging Purchaser’s component equipment with loaner equipment
while repairs are being made, and deploying service or applications
personnel for on-site services. Other than installation and preventative
maintenance visits, Seller shall determine in its sole discretion whether

and when any personnel or replacement parts or equipment are to besent to Purchaser’s site. Seller shall respond to Purchaser’s request for
support in accordance with the average response time specified in theService Plan. Seller will provide on-site support visits as specified in
the Service Plan if the Seller has identified a specific need that can befulfilled by the visit and if the Purchaser has made reasonableaccommodation for scheduling the visit. If no need is identified and/or
the timing of any visit cannot be scheduled at a mutually agreeable date
and time, Seller will provide other forms of support other than on-site
support visits to Purchaser.
4.
Software Support. During the Term, Seller shall use
commercially reasonable efforts to provide all Software updates andqualified Software upgrades in accordance with the terms of theService Plan as such materials become commercially available for
distribution. Purchaser’s use of all Software, updates, and upgrades ofSoftware shall be subject to this Agreement, the Original Terms, andthe applicable EULA.
5.
Hardware Support. During the Term, Seller shall use
commercially reasonable efforts to install mandatory Hardware updates
in accordance with the terms of the Service Plan as such materials
become available for distribution. Whether a Hardware update is
mandatory shall be determined by Seller in its sole discretion. Seller
shall reschedule Hardware updates to coincide with preventive
maintenance visits. If Purchaser requests that such Hardware updates
occur at a time or date other than during preventive maintenance visits,
Seller may, at its sole discretion, charge Purchaser for any costs andexpenses incurred in connection with such Hardware update visit. All
updated Hardware and components thereof and Purchaser’s use of thesame shall be subject to this Agreement and the Original Terms.
6.
Hardware Repairs. Seller shall use commercially reasonable
efforts to repair Covered Hardware reported by Purchaser and deemed
inoperable by Seller’s Purchaser Solutions personnel. Seller’s soleobligation hereunder is to provide parts and labor according to theterms of the Service Plan and is limited to only repair or replacement of
Seller branded parts originally provided by Seller to Purchaser. All
repaired or replaced items and Purchaser’s use of the Covered
Hardware including the repaired or replaced components shall be
subject to this Agreement and the Original Terms. For clarity, repairedor replaced items will be warranted to conform to the Specifications for
90 days from the date of installation or repair of such repaired or
replaced item.
7.
Documentation Updates. Seller shall use commerciallyreasonable efforts to provide updates to Documentation according to
the terms of the Service Plan as they become available for distribution.
Whether a Documentation update is mandatory shall be determined bySeller in its sole discretion. All updates to Documentation andPurchaser’s use of the Documentation shall be subject to thisAgreement and the Original Terms.
8.
Replacement Parts. All replacement parts and components
provided by Seller will be new or refurbished, in Seller’s sole
discretion, and shall be furnished on an exchange basis. All Hardware
or components thereof or other parts removed for replacement shallbecome the property of Seller. All replaced parts and components andPurchaser’s use of the Covered Hardware including the replaced partsand components shall be subject to this Agreement and the OriginalTerms. For clarity, repaired or replaced items will be warranted toconform to the Specifications for 90 days from the date of installation
or repair of such repaired or replaced item.
9.
Loaner Hardware. Seller may choose to provide, in its sole
discretion, loaner hardware or components to Purchaser to substitutefor the Covered Hardware or a component thereof, while service isbeing provided. Seller will be responsible for all costs associated withthe shipment of such loaner hardware or components to Purchaser’s
Site, exclusive of any taxes or duties, which are the sole responsibilityof Purchaser. Loaner hardware or components shall be certified bySeller’s Purchaser Solutions using the same criteria as used for new
hardware or components. Loaner hardware or components shall remain
the sole property of Seller, and must be returned within 30 days of
Seller’s request. Purchaser’s use of loaner hardware or components
shall be subject to Seller’s current terms and conditions of sale that
apply to such loaner hardware or component.
10.
Preventative Maintenance Visits. Seller will provide
preventative maintenance on-site visit according to the terms of theService Plan, which may result in two to three days of system downtime to Purchaser. Seller shall cooperate with Purchaser to schedule
such preventative maintenance visits at a time that is mutuallyconvenient for both parties. All such preventative maintenance services
will be provided by Seller designated service personnel. All travel,labor and parts/materials expenses associated with prescribedpreventative maintenance visits, visits to service, repair or replace
covered items, and applications support visits as provided for in theService Plan are included in the price set forth for such Service Plan.
Preventative maintenance services include testing and adjusting the
Covered Hardware to the Specifications. If any preventative
maintenance visit within the Term is precluded due to Purchaser’s
inability to provide a sufficient time period for such services and downtime, Seller shall not be obligated to provide a substitute preventative
maintenance visit. Seller shall not be liable for any economic,
consequential, incidental, special or other damages or losses of any
kind resulting from the down time during such preventative
maintenance visits.
11.
Purchaser Responsibilities.
a.
Proper Use: The performance of Covered Hardware when
operated in corrosive environments, or in conditions, or in a manner,outside of the Specifications including Seller’s site requirements
found in the Documentation or not in accordance with its
Documentation may have their performance adversely affected, andare therefore not guaranteed hereunder. The Purchaser agrees to use
the Covered Hardware in a safe and reasonable manner pursuant to
the Documentation and the Original Terms.
b.
Access: The Purchaser will provide Seller with access to the
Covered Hardware along with adequate working space and facilities
within a reasonable distance of the Covered Hardware. Access will
also be provided to all information and facilities that are reasonably
necessary for Seller to service the Covered Hardware.
c.
Data Back-up and Security: The Purchaser is responsible formaintaining a procedure to reconstruct any lost or altered files, data,or programs, as well as for the security of all confidential,
proprietary, and classified information.
d.
Networking: The Purchaser is responsible for maintaining allcomputer networking as it relates to the integration of any
components of the Covered Hardware outside of such system andwithin the Purchaser’s network.
e.
Representative: A representative of Purchaser will be present
on-site at all times service is being performed by Seller’s designatedservice personnel.

f.
Toxic/Bio-hazardous Substances: The Purchaser will notify
Seller in writing if any Covered Hardware is used for analysis of
toxic, hazardous or dangerous substances. Such Covered Hardware
must be decontaminated by Purchaser in accordance with Seller’s
decontamination procedures and Purchaser shall fax a completed andexecuted Decontamination Certificate to Purchaser Solutions before
any service may be performed on the Covered Hardware.
g.
Environment: The Purchaser agrees to provide Seller’s
designated service personnel with a safe environment for their work.
h.
Disposal of Waste Products: The Purchaser is responsible forthe proper disposal of waste products that result from maintenanceand service work on the Covered Hardware.
i.
Facilities: The Purchaser is responsible for ensuring that the
Site will adhere to Seller’s site requirements found in theDocumentation or Specifications. Any material deviation from
Seller’s site requirements affecting the proper functioning of the
Covered Hardware shall relieve Seller of its obligations under thisAgreement, including without limitation, under the Service Plan.
12.
Exclusions and Restrictions. The terms of this Agreement
cover maintenance and repair for conditions that result from normal use
and operation as described in the Documentation for the Covered
Hardware. Seller will not be obligated to perform maintenance orrepair on any Covered Hardware which, in its reasonable judgment:a.
Has been subjected to abuse, misuse, neglect, negligence,
accident, improper testing, improper installation other thaninstallation performed by Seller authorized personnel, improper
storage, improper handling, or use contrary to any instructions issued
by Seller or has been used in any manner inconsistent with its
Documentation:b.
Has been repaired, altered, disassembled, reassembled, or
damaged as a result of modifications made to the Covered Hardwarethat were not authorized in writing by Seller;c.
Has been damaged by environmental conditions at the Site;d.
Has not been installed, operated, repaired and maintained inaccordance with its Documentation or has been damaged due tooperators failing to perform standard operating procedures or routine
maintenance as prescribed in the applicable Documentation;e.
Has been moved from the Site by persons not expressly
authorized in writing by Seller;f.
Has been used with any third party software, hardware, or
item including, without limitation, reagent which has not beenpreviously approved in writing by Seller;g.
Has been exposed to Bio-safety Level 3 or 4 agents (asdefined by The Occupational Safety and Health Administration);h.
Has been exposed to radioactivity, and has not been
decontaminated to below exempt levels; ori.
Has been damaged due to an act of Force Majeure as defined
herein.
13.
Services by Third Parties on Seller’ Behalf. Seller reserves
the right to retain or contract outside vendors of its choosing to provide
service and support hereunder. In any instance where the terms andconditions of such vendor’s service, support, and warranty agreement
conflicts with the terms and conditions of this Agreement, the terms
and conditions of this Agreement shall govern; provided, however thatany exclusions on coverage contained in an OEM vendor’s terms andconditions shall remain in full force and effect.
14.
Relocation of Hardware. All Service Plans terminate
automatically with immediate effect and without the need for notice toPurchaser if Covered Hardware is moved to a different Facility without
Seller’s advance written consent. Upon such termination, Seller will
credit Purchaser’s account with Seller anamount equal to the unused portion of the Service Plan; provided that,
Purchaser pre-paid for the Service Plan in full. The credit may be used
toward future purchases from Seller of instruments, consumables orService Plans. Seller do not provide cash refunds. If Seller conducts themove of the Covered Hardware on Purchaser’s behalf then Seller andPurchaser will enter into a new Service Plan for such Covered
Hardware at the new Facility.
15.
Export of Hardware. Purchaser agrees not to move or
relocate Covered Hardware outside of the country to which Seller
originally shipped it without the expressly written authorization of an
officer of Seller.
16.
Recertification Requirement. Hardware not under anexisting Service Plan is only eligible for a Service Plan if Seller has
inspected the Hardware and its ancillary equipment and provided awritten notice to Purchaser that the Hardware is eligible for a Service
Plan (“Recertification Requirement”). Purchaser acknowledges that
Hardware may have to be repaired, at Purchaser’s sole expense, prior tobeing eligible for a Service Plan. Accordingly, Seller recommends that
Purchaser renew its existing Service Plan prior to their expiration.
17.
Renewal of Service Contract. If Purchaser renews theService Contract on a piece of Covered Hardware prior to the
expiration of the Service Contract, Seller will waive the Recertification
Requirement.
18.
Early Termination of Service Plan. Purchaser or Seller
may, in its sole discretion, terminate the Service Plan early byproviding 30 days prior written notice to the other, except that
Purchaser must provide 120 days prior written notice to Seller withrespect to Service Plans under which Illumina provides dedicated onsite support of Purchaser. Upon such termination, Seller will credit
Purchaser’s account with Seller an amount equal to the unused portionof the Service Plan ; provided that, Purchaser pre-paid for the Service
Plan in full; and provided further that, the amount of such credit will
be reduced by the amount of any discount Seller provided Purchaser asa result of Seller purchasing a multi-year Service Contract (“Unearned
Discount”). In the event Purchaser’s Unearned Discount exceeds theamount of credit that Seller would provide under this provision, Seller
will invoice Purchaser the difference and such invoice shall be paid
within 30 days. The credit may be used toward future purchases from
Seller of instruments, consumables or Service Plans. Seller do notprovide cash refunds
19.
Non-Transferable. All Service Plans are personal to theoriginal Purchaser of the Covered Hardware and may not be transferredor assigned to any third party.
20.
Force Majeure. Seller is not responsible for any failure to
perform or delay attributable in whole or in part to any cause beyond its
reasonable control, including but not limited to acts of God, fire, flood,
tornado, earthquake, hurricane, lightning, government actions, actual or
threatened acts of war, terrorism, civil disturbance or insurrection,
sabotage, labor shortages or disputes, failure or delay in delivery by
24.
Seller’s suppliers or subcontractors, transportation difficulties, shortageof energy, raw materials or equipment, or Purchaser’s fault or
negligence. In the event of any such delay the delivery date shall bedeferred for a period equal to the time lost by reason of the delay.
21.
Unauthorized Activities. Purchaser agrees not to, norauthorize any third party to, engage in any of the following activities:
25.
(i) disassemble, reverse-engineer, reverse-compile, or reverse-assemble
the Covered Hardware or an items provided hereunder (collectively“Materials”), (ii) separate, extract, or isolate components of theMaterials or subject the Materials or components thereof to any
analysis not expressly authorized in the Documentation, (iii) gain
access to or attempt to determine the methods of operation of theMaterials, or (iv) transfer to a third-party, or grant a sublicense to, any

Software or any third-party software provided hereunder. Purchaser
further agrees that the contents of and methods of operation of theMaterials are proprietary to Seller and the Materials contains or
embodies trade secrets of Seller.
22.
Limited Liability. TO THE EXTENT PERMITTED BY
LAW, IN NO EVENT SHALL SELLER OR ITS SUPPLIERS BE
LIABLE TO PURCHASER OR ANY THIRD PARTY FORCOSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS ORSERVICES, LOST PROFITS, DATA OR BUSINESS, OR FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY,CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KINDARISING OUT OF OR IN CONNECTION WITH, WITHOUT
LIMITATION, THE SALE OF THE COVERED HARDWARE
OR SERVICE PLAN, THE USE OF THE COVEREDHARDWARE, THE ITEMS AND SERVICES PROVIDEDHEREUNDER, SELLER’S PERFORMANCE HEREUNDER ORANY OF THESE TERMS AND CONDITIONS, HOWEVER
ARISING OR CAUSED AND ON ANY THEORY OF LIABILITY(WHETHERIN
CONTRACT,TORT(INCLUDINGNEGLIGENCE), STRICT LIABILITY OR OTHERWISE).
TO THE EXTENT PERMITTED BY LAW, SELLER’S TOTALAND CUMULATIVE LIABILITY TO PURCHASER OR ANY
THIRD PARTY ARISING OUT OF OR IN CONNECTION
WITH THESE TERMS AND CONDITIONS, INCLUDINGWITHOUT LIMITATION, THE COVERED HARDWARE OR
ITEMS PROVIDED HEREUNDER (INCLUDING USE
THEREOF), THE SERVICE PLAN, THE SERVICESPROVIDED HEREUNDER, AND SELLER’S PERFORMANCEHEREUNDER,WHETHERIN
CONTRACT,TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNTPAID TO SELLER FOR THE SERVICE PLAN AND BILLABLESERVICES.
23.
Limitations on Warranties. TO THE EXTENTPERMITTED BY LAW AND SUBJECT TO THE EXPRESSWARRANTIES MADE IN THESE TERMS AND CONDITIONSSELLER MAKES NO (AND EXPRESSLY DISCLAIMS ALL)WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITHRESPECT TO THE COVERED HARDWARE, THE ITEMSPROVIDED HEREUNDER, THE SERVICE PLANS, AND THE
SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT
LIMITATION,ANYIMPLIEDWARRANTYOF
MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE, NONINFRINGEMENT, OR ARISING FROMCOURSE OF PERFORMANCE, DEALING, USAGEOR
TRADE.
Payment Term. Unless otherwise indicated, Purchaser must pay
invoices within 30 days from the invoice date in the currency specified
in the invoice. Each order is a separate transaction, Purchaser may notsetoff payments from one order against another without Seller’s priorwritten consent.
Governing Law. These terms and conditions, their interpretation, andthe performance of the parties shall be governed by the laws of (i) theState of California, U.S.A., if Purchaser is located in the United States,(ii) the Province of British Columbia and the federal laws of Canada
applicable in the Province of British Columbia, if Purchaser is locatedin Canada, or (iii) the laws of the country where the Seller entity is
located, if Purchaser is not located in the United States or Canada.

26.
27.

28.

Seller and Purchaser agree that the United Nations Convention on
Contracts for the International Sale of Goods shall not apply to theseterms and conditions, including any terms in the Documentation.
Notice. Any notice required or permitted shall be in writing and shallbe deemed received when (i) delivered personally; (ii) 5 days after
having been sent by registered or certified mail, return receipt
requested, postage prepaid (or 10 days for international mail); or (iii)
1 day after deposit with a commercial express courier that provides
written verification of receipt.
Seller Information. Seller may maintain and use a database of orders
and account information pertaining to Purchaser for purposes of orderprocessing, maintaining records, assisting with future orders ofPurchaser, and compliance with applicable laws and regulations.
Purchaser may not disclose any financial terms of this transaction to
any third party without the prior written consent of the Seller, except
as (and only to the extent) required by securities or other applicablelaw. Purchaser grants to Seller a non-exclusive, fully paid-up, royaltyfree, worldwide, irrevocable, perpetual right and license, with theright to sublicense, to use and commercialize in any mannersuggestions, ideas or comments provided by Purchaser to Seller
related to the Service Plan.