Service Contract Terms and Limitations
Switzerland 30.04.2013
Illumina’s Service Contracts are subject to the following terms, conditions, and limitations.
1. Definitions.Interpretations. “Covered Hardware” means those3.
Response Time and On-site Support. Seller will use
portions of the Hardware that are covered by a Service Contractcommercially reasonable efforts to respond to Purchaser’s requests forpurchased by Purchaser hereunder. “Current Specifications” means
service within the time period specified in the Service Contract. All
Seller’s written specifications for the Covered Hardware that apply torequests for service must be made through Seller’s customer support
such Covered Hardware as provided in the Service Contract that isorganization (“Purchaser Solutions”). Please refer to Seller’s website
purchased hereunder, but only if the purchased Service Contract
for Purchaser Solutions contact information. Seller reserves the right toprovides that the Covered Hardware will conform to current
provide service and support by any method in its sole discretion,
specifications rather than the Original Specifications. “Purchaser”
including but not limited to, remote instruction via telephone, Internet
means the person or entity acquiring the Service Contract from Seller.
or email, mailing to Purchaser replacement parts or test equipment,“Documentation” means Seller’s user manual, package insert, andexchanging Purchaser’s component equipment with loaner equipment
similar documentation, for the Covered Hardware in effect on the date
while repairs are being made, and deploying service or applications
that such Covered Hardware shipped from Seller. Documentation may
personnel for on-site services. Other than installation and preventative
have contained additional terms and conditions that are hereby
maintenance visits, Seller shall determine in its sole discretion whether
incorporated herein by reference. Documentation may have been
and when any personnel or replacement parts or equipment are to beprovided (including by reference to a website) with the Covered
sent to Purchaser’s site. Seller shall respond to Purchaser’s request for
Hardware at time of shipment or provided electronically from Seller.
support in accordance with the average response time specified in the“EULA” means the end user license agreement for Software.
Service Contract. Seller will provide a minimum number of on-site“Facility” means the physical address where Covered Hardware is
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 thelocated. “Hardware” means Seller branded instruments, accessories,
Purchaser has made reasonable accommodation for scheduling the visit.
or peripherals.
“Original Specifications” means Seller’s written
If no need is identified and the timing of any visit cannot be scheduled
specifications for the Covered Hardware in effect on the date that suchat a mutually-agreeable date and time, Seller may provide fewer visits
Covered Hardware shipped from Seller. “Original Terms” means thethan prescribed in the Service Contract.
Seller terms and conditions of sale in effect on the date the Covered
4.
Software Support. During the Term, Seller shall use
Hardware was shipped from Seller setting forth the terms andcommercially reasonable efforts to provide all Software updates andconditions of Purchaser’s purchase and use of such Covered Hardware,
qualified Software upgrades in accordance with the terms of thecomponents thereof, and Software. “Quotation” means a written
Service Contract as such materials become commercially available for
quotation provided by Seller to Purchaser for the Service Contract.
distribution. Purchaser’s use of all Software, updates, and upgrades of“Seller” means the entity selling the Service Contract hereunder. The
Software shall be subject to this Agreement, the Original Terms, andSelling entity is identified on the quotation, order acknowledgment or
the applicable EULA.
similar communication, or Seller website if the order is being placed
electronically at Seller’s website. “Specifications” means the Current
5.
Hardware Support. During the Term, Seller shall use
Specifications or the Original Specifications, as applicable; provided
commercially reasonable efforts to install mandatory Hardware updates
that, Specifications shall in all cases refer to the Original Specificationsin accordance with the terms of the Service Contract as such materials
unless otherwise set forth in the Service Contract. “Site” means the
become available for distribution. Whether a Hardware update issmallest definable room that contains the Covered Hardware.
mandatory shall be determined by Seller in its sole discretion. Seller
shall reschedule Hardware updates to coincide with preventive“Software” means Seller branded software provided by Seller with themaintenance visits. If Purchaser requests that such Hardware updates
Covered Hardware. All Software is licensed and not sold and may beoccur at a time or date other than during preventive maintenance visits,
subject to additional terms found in the Software’s end user license
Seller may, at its sole discretion, charge Purchaser for any costs andagreement. “Term” means the length of the term of the Service
expenses incurred in connection with such Hardware update visit. All
Contract.
updated Hardware and components thereof and Purchaser’s use of theSections, titles and headings in these terms and conditions are forsame shall be subject to this Agreement and the Original Terms.
convenience only and are not intended to affect the meaning or
6.
Hardware Repairs.
Seller shall use commerciallyinterpretation hereof. Whenever required by the context, the singularreasonable efforts to repair Covered Hardware reported by Purchaser
term shall include the plural, the plural term shall include the singular,
and deemed inoperable by Seller’s Purchaser Solutions personnel.
and the gender of any pronoun shall include all genders. As used in
Seller’s sole obligation hereunder is to provide parts and laborthese terms and conditions except as the context may otherwise require,according to the terms of the Service Contract and is limited to only
the words “include”, “includes”, “including”, “such as”, “e.g.” orrepair or replacement of Seller branded parts originally provided by“example(s)” are deemed to be followed by “without limitation”,
Seller to Purchaser. All repaired or replaced items and Purchaser’s use
whether or not they are in fact followed by such words or words of likeof the Covered Hardware including the repaired or replaced
import, and “will” and “shall” are used synonymously. Except ascomponents shall be subject to this Agreement and the Original Terms.
expressly stated, any reference to “days” shall be to calendar days, andFor clarity, repaired or replaced items will be warranted to conform to“business day” shall mean all days other than Saturdays, Sundays or a
the Specifications for 90 days from the date of installation or repair ofbank holiday recognised in Switzerland.
Term. All Service Contracts are for a period of 12 months,
such repaired or replaced item.
2.
unless otherwise agreed to in writing by Seller or as set forth in the
7.
Documentation Updates. Seller shall use commerciallyrelevant Quotation.
reasonable efforts to provide updates to Documentation according to
the terms of the Service Contract as they become available fordistribution. Whether a Documentation update is mandatory shall be
determined 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 toconform 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 Service
Contract. 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 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/BioHazardous 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 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 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 authorised 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 authorised 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
authorised 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; ori.
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 anamount 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 the
expiration of the Service Contract Seller will waive the Recertification
Requirement.
18.
Early Termination of Service Contract. Purchaser orSeller may, in their sole discretion, terminate the Service Contract earlyby providing 30 days prior written notice to the other. Upon suchtermination, Seller will credit Purchaser’s account with Seller anamount equal to the unused portion of the Service Contract; provided
that, Purchaser pre-paid for the Service Contract in full; and provided
further that, the amount of such credit will be reduced by the amount ofany discount Seller provided Purchaser as a result of Seller purchasinga multi-year Service Contract (“Unearned Discount”). In the event
Purchaser’s Unearned Discount exceeds the amount of credit that Seller
would provide under this provision, Seller will invoice Purchaser thedifference 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 shall not be in breach of these terms
and conditions nor liable for any failure to perform or delay attributablein 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, any action taken by a government or
regulatory authority, actual or threatened acts of war, terrorism, civil
disturbance or insurrection, sabotage, labor shortages or disputes,
failure or delay in delivery by Seller’s suppliers or subcontractors,
transportation difficulties, interruption or failure of any utility service,

raw materials or equipment, or Purchaser’s fault or negligence. In theevent of any such delay the delivery date shall be deferred for a period
equal to the time lost by reason of the delay.
21.
Unauthorised Activities. Purchaser agrees not to, norauthorised any third party to, engage in any of the following activities:(i) to the extent not otherwise permitted by law to disassemble, reverseengineer, reverse-compile, or reverse-assemble the Covered Hardware
or an items provided hereunder (collectively “Materials”), (ii) to theextent not otherwise permitted by law to separate, extract, or isolatecomponents of the Materials or subject the Materials or components
thereof to any analysis not expressly authorised in the Documentation,(iii) to the extent not otherwise permitted by law to gain access to or
attempt to determine the methods of operation of the Materials, or (iv)to the extent not otherwise permitted by law to 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 andmethods of operation of the Materials are proprietary to Seller and theMaterials contains or embodies trade secrets of Seller. The restrictions
found in these terms and conditions control the sale of and use of the
Products by Purchaser.
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,ORCONSEQUENTIAL, DAMAGES OF ANY KIND ARISING OUT
OF OR IN CONNECTION WITH, WITHOUT LIMITATION,
THE SALE OF THE COVERED HARDWARE OR SERVICECONTRACT, THE USE OF THE COVERED HARDWARE, THE
ITEMS AND SERVICES PROVIDED HEREUNDER, SELLER’SPERFORMANCE HEREUNDER OR ANY OF THESE TERMS
AND CONDITIONS, HOWEVER ARISING OR CAUSED AND
ON ANY THEORY OF LIABILITY (WHETHER IN
CONTRACT,TORT(INCLUDINGNEGLIGENCE),
MISREPRESENTATION, STATUTORY 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 CONTRACT, THE SERVICESPROVIDED HEREUNDER, AND SELLER’S PERFORMANCEHEREUNDER,WHETHERIN
CONTRACT,TORT(INCLUDINGNEGLIGENCE),
MISREPRESENTATION,STATUTORY DUTY OR OTHERWISE, SHALL IN NO EVENT
EXCEED THE AMOUNT PAID 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 OR IMPLIED, WITH RESPECT TO
THE COVERED HARDWARE, THE ITEMS PROVIDEDHEREUNDER, THE SERVICE CONTRACTS, AND THE
SERVICESPROVIDED
HEREUNDER,INCLUDINGWITHOUT LIMITATION, ANY IMPLIED WARRANTY OF

SATISFACTORY QUALITY, FITNESS FOR A PARTICULARPURPOSE, CARE AND SKILL, NONINFRINGEMENT, OR
ARISING FROM COURSE OF PERFORMANCE, DEALING,
USAGE OR TRADE.
NOTHING IN THESE TERMS AND CONDITIONS SHALL
LIMIT LIABILITY OF A PARTY OR ITS AFFILIATED
ENTITIES FOR DEATH OR PERSONAL INJURY CAUSED BYNEGLIGENCE OR FRAUD.