Service Contract Terms and Limitations
Illumina’s Service Contracts are subject to the following terms, conditions, and limitations.
1.
Definitions. “Covered Hardware” means those portions ofthe Hardware that are covered by a Service Contract 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 Contract that ispurchased hereunder, but only if the purchased Service Contract
provides that the Covered Hardware will conform to current
specifications rather than the Original Specifications. “Purchaser”
means the person or entity acquiring the Service Contract from Seller.
“Documentation” means Seller’s user manual, package insert, andsimilar documentation, for the Covered Hardware in effect on the datethat such Covered Hardware shipped from Seller. Documentation may
have contained additional terms 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 islocated. “Hardware” means Seller branded instruments, accessories,
or peripherals.
“Original Specifications” means Seller’s written
specifications for the Covered Hardware in effect on the date that such
Covered Hardware shipped from Seller. “Original Terms” means theSeller terms and conditions of sale in effect on the date the Covered
Hardware was shipped from Seller setting forth the terms andconditions of Purchaser’s purchase and use of such Covered Hardware,components thereof, and Software. “Quotation” means a written
quotation provided by Seller to Purchaser for the Service Contract.
“Seller” means the entity selling the Service Contract hereunder. TheSelling entity is identified on the quotation, order acknowledgment orsimilar communication, or Seller website if the order is being placed
electronically at Seller’s website. “Specifications” means the Current
Specifications or the Original Specifications, as applicable; provided
that, Specifications shall in all cases refer to the Original Specifications
unless otherwise set forth in the Service Contract. “Site” means thesmallest definable room that contains the Covered Hardware.
“Software” means Seller branded software provided by Seller with theCovered Hardware. All Software is licensed and not sold and may besubject to additional terms found in the Software’s end user license
agreement. “Term” means the length of the term of the ServiceContract.
2.
Term. All Service Contracts are for a period of 12 months,
unless otherwise agreed to in writing by Seller or as set forth in therelevant 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 in the Service Contract. Allrequests 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, Internetor 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 Contract. Seller will provide a minimum number of on-site
support visits as specified in the Service Contract if the Purchaser has
identified a specific need that can be fulfilled by the visit and if thePurchaser has made reasonable accommodation for scheduling the visit.
If no need is identified and the timing of any visit cannot be scheduled
at a mutually-agreeable date and time, Seller may provide fewer visits
than prescribed in the Service Contract.
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 Contract as such materials become commercially available fordistribution. 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 usecommercially reasonable efforts to install mandatory Hardware updates
in accordance with the terms of the Service Contract 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 commerciallyreasonable efforts to repair Covered Hardware reported by Purchaserand deemed inoperable by Seller’s Purchaser Solutions personnel.
Seller’s sole obligation hereunder is to provide parts and laboraccording to the terms of the Service Contract and is limited to only
repair or replacement of Seller branded parts originally provided bySeller to Purchaser. All repaired or replaced items and Purchaser’s useof the Covered Hardware including the repaired or replacedcomponents shall be subject to this Agreement and the Original Terms.
For clarity, repaired or replaced items will be warranted to conform to
the Specifications for 90 days from the date of installation or repair ofsuch repaired or replaced item.
7.
Documentation Updates. Seller shall use commerciallyreasonable efforts to provide updates to Documentation according to
the terms of the Service Contract as they become available fordistribution. Whether a Documentation update is mandatory shall bedetermined by Seller in its sole discretion.
All updates toDocumentation and Purchaser’s use of the Documentation shall be
subject to this Agreement 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 a
preventative maintenance on-site visit according to the terms of theService Contract, 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 maintenanceservices 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 Contract are included in the price set forth for such ServiceContract. Preventative maintenance services include testing andadjusting the Covered Hardware to the Specifications. If any
preventative maintenance visit within the Term is precluded due toPurchaser’s inability to provide a sufficient time period for suchservices and down time, Seller shall not be obligated to provide asubstitute preventative maintenance visit. Seller shall not be liable forany economic, consequential, incidental, special or other damages orlosses of any kind resulting from the down time during suchpreventative 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 theCovered 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 anycomponents 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/BioHazardous Substances: The Purchaser will notify
Seller in writing if any Covered Hardware is used for analysis oftoxic, 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 theSite will adhere to Seller’s site requirements found in theDocumentation or Specifications. Any material deviation fromSeller’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 Contract.
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 CoveredHardware. 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, ordamaged 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 Contracts terminate
automatically with immediate effect and without the need for notice toPurchaser if Covered Hardware is moved to a different Facility. Uponsuch termination, Seller will credit Purchaser’s account with Seller anamount equal to the unused portion of the Service Contract; provided
that, Purchaser pre-paid for the Service Contract in full. If Seller
conducts the move of the Covered Hardware on Purchaser’s behalf thenSeller and Purchaser will enter into a new Service Contract 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 Contract is only eligible for a Service Contract if Seller
has inspected the Hardware and its ancillary equipment and provided awritten notice to Purchaser that the Hardware is eligible for a Service
Contract (“Recertification Requirement”). Purchaser acknowledges
that Hardware may have to be repaired, at Purchaser’s sole expense,
prior to being eligible for a Service Contract. Accordingly, Seller
recommends that Purchaser renew its existing Service Contracts prior
to their expiration.
17.
Renewal of Service Contract. If Purchaser renews theService Contract on a piece of Covered Hardware prior to theexpiration of the Service Contract Seller will waive the Recertification
Requirement.
18.
Early Termination of Service Contract. Purchaser orSeller may, in its sole discretion, terminate the Service Contract earlyby providing 30 days prior written notice to the other, except that
Purchaser must provide 120 days prior written notice to Seller withrespect to Service Contracts under which Illumina provides dedicatedon-site support of Purchaser. Upon such termination, Seller will credit
Purchaser’s account with Seller an amount equal to the unused portionof the Service Contract; provided that, Purchaser pre-paid for theService Contract in full; and provided further that, the amount of suchcredit will be reduced by the amount of any discount Seller provided
Purchaser as a result of Seller purchasing a multi-year Service Contract(“Unearned Discount”). In the event Purchaser’s Unearned Discountexceeds the amount of credit that Seller would provide under thisprovision, Seller will invoice Purchaser the difference and such invoice
shall be paid within 30 days.
19.
Non-Transferable. All Service Contracts 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 bySeller’s suppliers or subcontractors, transportation difficulties, shortageof energy, raw materials or equipment, or Purchaser’s fault ornegligence. 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:(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 orembodies 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 HARDWAREOR SERVICE CONTRACT, 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(WHETHERINCONTRACT,TORT(INCLUDINGNEGLIGENCE), STRICT LIABILITY OR OTHERWISE).
TO THE EXTENT PERMITTED BY LAW, SELLER’S TOTALAND CUMULATIVE LIABILITY TO PURCHASER OR ANYTHIRD PARTY ARISING OUT OF OR IN CONNECTIONWITH THESE TERMS AND CONDITIONS, INCLUDINGWITHOUT LIMITATION, THE COVERED HARDWARE ORITEMS PROVIDED HEREUNDER (INCLUDING USETHEREOF), THE SERVICE CONTRACT, THE SERVICESPROVIDED HEREUNDER, AND SELLER’S PERFORMANCEHEREUNDER,WHETHERINCONTRACT,TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY OROTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNTPAID TO SELLER FOR THE SERVICE CONTRACT AND
BILLABLE SERVICES.
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 CONTRACTS, ANDTHE SERVICES PROVIDED HEREUNDER, INCLUDINGWITHOUT LIMITATION, ANY IMPLIED WARRANTY OFMERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE, NONINFRINGEMENT, OR ARISING FROMCOURSE OF PERFORMANCE, DEALING, USAGE ORTRADE.