The following terms and conditions apply to any services purchased from DiaPharma, Inc. The Instrumentation Services Quote and these Terms and Conditions comprise the agreement between DiaPharma, Inc. and Customer.
- Pre-Coverage Inspection Requirements
Prior to start of coverage, the instrument must be inspected for condition and functionality by DiaPharma Group, Inc. (DiaPharma). Any deficiencies discovered will be remedied by DiaPharma prior to start of coverage.
The cost of this inspection is not included in the agreement and shall be based on current travel and labor rates. Other costs and expenses associated with any necessary remedies to correct all deficiencies and to be in compliance with the agreement are not included and shall be paid separately by Customer (see Section 3).
If the coverage is scheduled to begin immediately following the period of manufacturer warranty, or a previous agreement with DiaPharma already exists for the specified instrument(s), the pre-coverage inspection and remediation of deficiencies does not apply.
- Scope of the Service Coverage
This Service Coverage includes one annual inspection with preventative maintenance (if/when applicable); repairs and correction of deficiencies not caused by neglect and abuse of equipment; all necessary manufacturer- provided spare parts, computer peripherals, travel, and labor.
DiaPharma will carry out one on-site regular preventative maintenance service per year, if recommended by manufacturer and in accordance with the manufacturer’s guidelines.
DiaPharma will attempt to resolve any instrument issues through remote means (telephone, video call, depot service). Upon request, a loaner instrument may be provided, if available, in the event depot service is used. If on-site service is needed, the parties shall schedule such on-site services, for a mutually agreeable date.
- Services not covered by this Service Agreement
- Service to repair malfunctions or damage as a result of:
- Improper use of the device
- Manipulation or influence by customer or any 3rd party including software installation
- Force majeure
- Gross negligence or willful misconduct
- Theft, fire, water, accident
- Device refurbishment
- Relocation and/or re-installation without prior written approval from DiaPharma
- Data interpretation
- Consumables or reagents needed
- Any device not listed specifically in the Service Quote Form
- Services outside of DiaPharma’s normal working hours
- Services on public holidays and weekends
- Term/Early Termination
The terms shall begin on the effective date (defined as inspection date or at expiration of warranty or expiration of previous coverage, whichever is most applicable). The term will be 12 months from the effective date. Three months before expiration, the parties will discuss coverage extension of one year.
DiaPharma is entitled to terminate the coverage early with immediate effect if the customer does not meet essential obligations, including timely payment (see Section 5).
- Terms of Payment
The fee and payment terms for instrumentation services will be detailed in the quotation provided by DiaPharma. Payment is due net 30 days after invoice and any maintenance and service work will not be performed until payment is received.
Any and all additional services not included in the scope of this agreement will be subject to an hourly rate, travel costs, and costs for spare/replacement parts. An estimated quote for these additional services will be provided prior to service.
DiaPharma guarantees that all inspection, maintenance, and repair work will be carried out properly. No guarantee for the uninterrupted operation readiness of the instrument(s) is made. Warranty obligations are limited to the free removal of deficiencies and damage to the instrument caused by improper service by DiaPharma.
The customer’s warranty claim expires if not communicated within three days from the occurrence of the defect; or if the customer performs service on the instrument (unless directed by DiaPharma); or if a third party performs service (unless approved by DiaPharma). This does not include periodic maintenance carried out by the customer in accordance with the operating instructions.
DiaPharma is only responsible for damages directly caused by it or its employees’ gross negligence or willful intent. The amount of compensation claim is limited to the amount of the annual maintenance fee.
- Confidentiality/Data Protection
All non-public, confidential or proprietary information of DiaPharma, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by DiaPharma to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Terms and Conditions is confidential, solely for the use of performing Service and may not be disclosed or copied unless authorized in advance by DiaPharma in writing. Upon DiaPharma’s request, Customer shall promptly return all documents and other materials received from DiaPharma. DiaPharma shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
Subject to these Terms and Conditions, Customer shall indemnify, defend, and hold harmless DiaPharma and its representatives/officers, directors, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by any party (collectively, “Losses”), relating to/arising out or resulting from any Claim of a third party alleging:
breach or non-fulfillment of any representation, warranty, or covenant of this Agreement by Customer or its officers, directors, employees, agents, or representatives (“Customer Personnel”); or
any negligent or more culpable act or omission of Customer or Customer Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; or
any bodily injury, death of any person, or damage to real or tangible personal property caused by the acts or omissions of Customer or Customer Personnel; or
any failure by Customer or Customer Personnel to comply with any applicable Laws.
- Other Provisions
These terms, along with the Instrumentation Services Quote, govern the relationship between the parties as it relates to Instrument Service. There are no side-agreements, verbal or otherwise. Any changes to these terms and conditions must be in writing and signed by both parties to be effective.
Should individual provisions of these terms and conditions be or become ineffective or unenforceable, the remaining provisions shall remain unaffected. The parties will replace the ineffective or unenforceable provision in accordance with the spirit and purpose of the terms and conditions.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
DiaPharma is entitled to transfer the rights and obligations from this agreement in whole or in part to third parties.
This agreement will be governed under the laws of the State of Ohio. The exclusive place of jurisdiction for any disputes arising from this relationship is Butler County, Ohio.