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HomeMy WebLinkAboutResolution - 2007-R0287 - Contract - Applied Biosystems - Fast Real Time PCR System - 06/26/2007Resolution No. 21D07-RO287 ,Tune 26, 2007 Item No. 4.32 RESOLUTION LE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Contract and any associated documents by and between the City of Lubbock and Applied Biosystems of Foster City, CA, for an Applied Biosystems 7500 Fast Real -Time PCR System with tower computer, a copy of which Contract and any associated documents are attached hereto and which shall be spread upon the minutes of this Council and as spread upon the minutes of this Council shall constitute and be a part hereof as if fully copied herein in detail. Passed by the City Council this 26th day of ATTEST: a Garza, City Secretary APPROVED AS TO CONTENT: ommy Camden, HeaA Director APPROVED AS TO FORM: nald Y G. Vandiver Attorney of Counsel DDres+Appliedf3iunsystems-k IDOXOTiRes .tune l3. 2007 June DAVID A. MILLER, MAYOR , 2007. Resolution No. 2007-RO287 AB. Applied Quotation Biosystems North American PAGE 1 of 11 Sales and Service 850 Lincoln Centre Drive Foster City, CA 94404 U.S.A. (800)874-9868; F(650)638-5875 To: Kim Swacina Quote No.: 20406497 City of Lubbock Quote Valid To: 06/15/2007 Health Department Laboratory Quote Date: 05/01 /2007 1902 Texas Avenue Pay Terms: Net 30 Days LUBBOCK TX 79408 Freight Terms: FOB FACTORY - FRT QUOTED Telephone No. 806-775-2908 Pease reference Quote. No. Fax No. wen placing your orders. Item Part Number Description QTY Unit List Price Unit Net Price Total Extended Price 0001 4365463 QST,7500 FAST REAL-TIME,TOwER,SVC INS 1.00 49,900.00 47,405.00 47,405.00 PRODUCT DESCRIPTION: Applied Biosystems 7500 Fast Real -Time PCR System with Tower Computer. INCLUDES: Dell Business Line Tower Computer ,see (www.appliedbiosystems.com/7500Fast) for latest specifications. Chemical Installation Kit including: Master Mix, RNaseP primer Probe set, Dye Calibration Kits RNaseP Instrument Verification Kit Documentation Set including : p/n 4347823: Site Preparation and Safety Guide p/n 4347828: Installation and Maintenance Guide p/n 4348358: Chemistry Guide The above price reflects a "special one time discount". This offer is contingent upon receipt of your purchase order on or before the 'Quote Valid' date. This quotation, including Applied Biosystems' General Terms and Conditions of Sale fumished with this quotation (and, if operating software is Included, Applied Biosystems' End User Software License Agreement for Instrument Operating and Associate Bundled Software) set forth the terms on which Applied Biosystems is offering to sell the product(s) listed and are an integral part of any contract between Applied Biosystems and the customer named above. Applied Blosystems' End User Software License Agreement can be found on Applied Biosystems website, at: http://www.appliedbiosystems.comMegal. By issuing a purchase order or otherwise ordering the product(s), the customer expressly agrees to these General Terms and Conditions of Sale (and End User Software License Agreement, if applicable) to the exclusion of all others not expressly agreed to in writing by an authorized representative of Applied Biosystems- If you have any questions, please call Applied Biosystems' Customer Account Services at 800-874-9868. Stenographicallclerical errors are subject to correction. Most recent quotation date will supersede all prior quotations. All amounts are In USD. Sales Representative: Debra DiGiacomo Prepared by: Joan Robinson ACCEPTANCE OF THIS QUOTATION IS LIMITED TO THE ATTACHED TERMS ��Applied Quotation Siosystems �A.b.Cam— �, North American PAGE 2 of 11 Sales and Service 850 Lincoln Centre Drive Foster City, CA 94404 U,S.A. (800)874-9868: F(650)638-5875 QUOTE NO.: 20406497 QUOTE VALID TO: 06/15/2007 To: Kim Swacina QUOTE DATE 05/01/2007 City of Lubbock PI ase reference Quot No. w�ien placing your orders. Item Part Number Description QTY Unit List Price Unit Net Price Total Extended Price "Getting Started Guides" for all major real-time PCR applications including: pin 4347825: Absolute Quantitation pin 4347824: Relative Quantitation (Gene Expression measurement) p/n 4347822: Allelic Discrimination (SNP genotyping assays) p/n 4347821: Plus/Minus (presence/absence assays) Primer Express primer and probe design software. WARRANTY: Warranty of one year parts, labor and service travel. UL Approved CUL Approved TRAINING: One -day onsite training package provided by a Field Applications Specialist 0002 4363619 TF, 7500 FAST SOS 1.00 0.01 0.00 0.00 0003 4362214 TF,FAST 7500 CHEMICAL INSTALL KIT 1.00 0.01 0.00 0.00 0004 4383674 PRINTER,HP DESKJET 6940 100-240VAC-RC 1.00 253.00 253.00 253.00 0005 ANN-I-SDS AB ASSURANCE AGREEMENT 1.00 0.01 5,143.50 5,143.501 AI'�Applied Biosystems North American Sales and Service 850 Lincoln Centre Drive Foster City, CA 94404 U.S.A. (800)874-9868; F(650)638-5875 To: Kim Swacina City of Lubbock Quotation PAGE 3 of 11 QUOTE NO.: 20406497 QUOTE VALID TO: 06/15/2007 QUOTE DATE 05/01 /2007 Please reference Quote. No. when placing your orders. Unit Unit Total Item Part Number Description QTY I List Net Extended Price Price Price Save now on Service! For a limited time, get 3 full years of our AB Assurance service for the price of 2 years -- a 33% discount. For details and to find out about other plan options, contact your local AB Sales Representative. The AB Assurance Ran(s) must be purchased in advance; The AB Assurance Plan purchased must be invoiced in full on the same sales order as the instrument; " Discounts will NOT apply to "annual billing" of Service Plan; The AB Assurance Plan will start after the instrument warranty expires; This AB Assurance Ran is subject to and governed by the Applied Biosystems Service Agreement Terms and Conditions attached to this Quotation, rather than Applied Biosystems' General Terms and Conditions of Sale. By ordering or otherwise accepting an Applied Biosystems AB Assurance Ran, you agree to these Service Agreement Terms and Conditions to the exclusion of all other terms relating the AB Assurance Ran not expressly agreed to in writing by an authorized representative of Applied Biosystems. A Applied Quotationftsystems M Wp*M Ca Pm &a'n North American PAGE 4 of 11 Sales and Service 850 Lincoln Centre Drive Foster City, CA 94404 U.S.A. (800)874-9868; F(650)638-5875 QUOTE NO.: 20406497 QUOTE VALID TO: 06/15/2007 To: Kim Swacina QUOTE DATE 05/01/2007 City of Lubbock Plip.ase reference Quotip No. when placing your orders. Item Part Number Description QTY Unit List Price Unit Net Price Total Extended Price Total extended price reflects the following calculations: Annual AB Assurance Plan list price for the Model 7500 is $4,725.00 Zone charge,if applicable. (Zone charges are based upon actual shipping address). $990.00 0% Customer Instrument Service flan discount (based on prior 12 months spending level.):> NET PRICE List price plus zone charge, less customer discount: $5,715.00 AB Assurance Plan for additional years: First additional year of AB Assurance Plan, 10% per year (after expiration of warranly):10% is taken oft of the net price (Net Price: List, plus zone charge,less customer discount). If purchasing only one year, show quantity one at a price of $5,143.50 2+ years of additional AB Assurance Plan 13%/year (after expiration of warranty) 13% is taken off of the net price (Net Price:List, plus zone charge, less customer discount), multiplied by the number of years being purchased. If purchasing more than 1 year, please show quantity to be purchased at a cost of $4,972.05 (net price less 13%). The above multi -year AB Assurance Plan purchase discounts are contingent upon the following: 1)The AB Assurance Plan(s) must be purchased in advance; 2)The AB Assurance Plan purchased must be invoiced in full on the same sales order as the instrument; 3)Discounts will NOT apply to "annual billing" of Service Plan; 4)The AB Assurance Plan will start after instrument warranty expires; This AB Assurance Plan is subject to and governed by Applied Biosystems Service Agreement Terms and Conditions attached to this Quotation, rather than Applied Biosystems' General Terms and Conditions of Sale. By ordering or otherwise accepting an Applied Biosystems AB Assurance Plan, you agree to these Service Agreement Terms and Conditions to the exclusion of all other terms relating to AB Assurance Plan not expressly agreed to in writing by an authorized representative ofApplied Biosystem 0006 F200 Freight 1.00 10.00 721.00 721.00 -TDQ /��� Applied Quotation /�1. Biosystems .�AWk.C� —�,9 North American PAGE 5 of 11 Sales and Service 850 Lincoln Centre Drive Foster City, CA 94404 U.S.A. (800)874-9868; F(650)638-5875 QUOTE NO.: 20406497 QUOTE VALID TO: 0611512DO7 To: Kim Swacina QUOTE DATE 0510112DO7 City of Lubbock PI ase reference Quotip No. when placing your orders. Unit Unit Total Item Part Number Description QTY List Net Extended Price Price F"Ce Shipments are made immediately upon availability. To expedite processing your purchase order, please fax the order referencing the quotation number to attention of Sales Administration - 650-638-5875 - O R - Visit us on the web H @ applied biosystems.com Available on the web: Instrument Ordering, Product Information, Certificate of Analysis, and more..... Resolution No. 2007—RO287 PAGE 6 of 11 APPLIED BIOSYSTEMS GENERAL TERMS AND CONDITIONS OF SALE These General Terms and Conditions of Sale ("Terms") shall govern all orders for and purchases of products and services from Applied Biosystems ("AB"), including installation of equipment, unless other terms are specifically designated by AB to apply to a specific product or service, or AS and buyer have entered into a master purchase agreement or other written agreement that expressly provides that its terms supersede and replace these Terms with respect to the products or services covered by the master purchase or other agreement (See Section 12, SOLE TERMS, INCONSISTENCIES, ORDER OF PRECEDENCE), 1. PRICE The price for any product or service (hereinafter collectively "Product") shall be the price stated in AB's quotation to buyer for the Product ("AB's Quotation") or, if AB has not issued a quotation, AB's list price of the Product at the time AS receives buyer's purchase order. AB's quotations are valid for 30 days from the quotation date unless otherwise stated in AB's Quotation. If AB's price is stated by reference to a price Fist then the price shall be AB's list price in the jurisdiction in which the Product is to be delivered or performed in effect at the time AB receives buyer's purchase order. Prices stated are exclusive of all taxes, fees, licenses, duties, levies or other governmental assessments ("Taxes") and, unless otherwise stated in AB's Quotation, shipping and handling charges, freight and insurance. All Taxes related to Product shall be paid by buyer (other than taxes assessed against AS's net income), or in lieu thereof, buyer shall provide AB with a tax exemption certificate acceptable to the relevant taxing authorities. Taxes and other charges payable by buyer may be billed as separate items on AB's invoice. 2. PAYMENT TERMS; COLLECTION COSTS; SECURITY TERMS. Payment terms are net 30 days from date of AB's invoice. If AB deems buyer to be or to have become uncreditworthy, AS shall have the right to require alternative payment terms, including without limitation sight draft, letter of credit, or payment in advance. Payment for partial shipments shall be based on unit or prorated prices, and payment for partial installation(s) shall be based on percentage of completion of installation,as reasonably determined by AB. If payment is not received by the due dale, AB may assess and buyer agrees to pay a late payment charge at the rate of 1% per month (12% per year) or the maximum legal rate, whichever is less, of the amount due from the due date to the date of payment. If AB retains a collection agency or attorney to collect unpaid amounts, AB may invoice buyer for, and buyer will pay, all reasonable costs of collection, including without limitation reasonable attorneys fees. Buyer hereby grants to AS and AB reserves a purchase money security interest in all tangible Product purchased from AS, and in any proceeds thereof, for all amounts owing to AB for or related to such Product. Upon request by AS, buyer shall sign any reasonable documents required for AB to perfect such security interest and, to the fullest extent permitted by law, buyer hereby expressly grants AB authority and a limited power of attorney to file financing statements and amendments thereto for and on behalf of buyer for such Product and any proceeds thereof. Payment in full of all amounts owed for and related to such Product shall release such security interest in the Product and proceeds. 3. CREDIT TERMS. AB may, at any time and in its sole discretion, limit or cancel the credit of buyer as to time and amount, suspend shipments, demand payment in cash before delivery of Product, or demand other assurances of buyer's performance. If buyer fails to agree and comply with the different terms of payment demanded, or fails to give adequate assurances of performance, AB may, without prejudice to any other right or remedy AB may have: (i) by notice to buyer, treat such failure or refusal as a repudiation by buyer of that portion of buyer's order not then fully performed, whereupon AS may cancel all further deliveries, and any amounts unpaid for non -cancelled Product shall immediately become due and payable; or (ii) make shipments under reservation of a security interest and demand payment against tender of title documents. 4. ACCEPTANCE OF ORDERS, DELIVERY, TITLE AND RISK OF LOSS, INSTALLATION. AB may accept or reject any buyer purchase order for Product in whole or in part. If a purchase order is accepted, AB will use reasonable efforts to ship tangible Product or perform services, including equipment installation if agreed to by AB,subject to the purchase order within a reasonable time after ordered, or,if a shipment, service commencement or installation date is indicated in AB's Quotation or otherwise agreed upon in writing by an authorized representative of AS, on or before such date. AS may make delivery in installments, and each installment shall be deemed to be a separate sale. AB may render a separate invoice for each installment, which invoice shall be paid without regard to prior or subsequent installments. Unless indicated otherwise in AB's Quotation, title and risk of loss with respect to all Products except Products that are software or services, and risk of loss with respect to software, shall pass from AS to buyer upon transfer of possession of the Product to a common or other third party carrier at AB's facility. If AS has undertaken to install a Product, it is buyer's responsibility, at buyer's cost, to have the installation site prepared and available for installation free of hazardous or unsafe conditions and, unless AS otherwise agrees, to move the Product, uncrated, from the buyer's delivery dock or receiving location to the table top or other place of installation. Buyer shall not assign AB personnel to work in biosafety level 3 or level 4 laboratories without prior written notice to AB and AB's consent. 5. CANCELLATION AND DEFERRAL. BUYER MAY NOT CANCEL ANY PURCHASE ORDER. However, unless otherwise stated in AS's Quotation, buyer may defer the shipment date one time for up to 60 days for instruments and other hardware, and up to 30 days for reagents, consumables and other tangible Product, by giving written notice to AS at least 30 days before the scheduled shipment date for instruments and other hardware, and at least 10 days before the scheduled shipment date for other Product. 6. REJECTION AND RETURN OF GOODS. Any claims for damaged, missing or defective Product must be reported in writing by buyer within 15 days from the date of buyer's receipt of the Product. In addition, buyer must promptly return a rejected Product to AS, C.O.O., unused and in a condition no worse than that delivered to buyer and in the Product's original containers and packing material, accompanied by a valid return authorization number obtained from AS. AB may refuse any Product not timely rejected or sought to be returned without a valid return authorization number. For any valid claim timely made, AS, at its option, may repair the Product or replace the Product with an identical or substantially similar Product. Shipping charges will not be credited. THESE ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR DAMAGED OR MISSING PRODUCT, AND, EXCEPT FOR EXPRESS WRITTEN WARRANTY RIGHTS, FOR DEFECTIVE PRODUCT. AB may require that buyer sign and deliver a properly completed certificate of decontamination prior to returning any Product. 7. LIMITED WARRANTY. AB makes only those warranties with respect to Product expressly identified as "warranties" and set forth in AB's current operating manual or catalog, or in a specific written warranty included with and covering Product, if any. Warranties are made only to the buyer purchasing the Product directly from AS, are not transferable and do not extend to the benefit of any other person or entity, unless otherwise expressly stated in writing by AS. ANY PRODUCT NOT COVERED BY AN EXPRESS WRITTEN WARRANTY IS SOLD AND PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED. Any description of Product recited in AB's Quotation is for the sole purpose of identifying Product, and any such description is not part of any contract between AB and buyer and does not constitute a warranty that Product shall conform to that description. Any sample or model used in connection with AB's Quotation is for illustrative purposes only, and is not part of any contract between AS and buyer and does not constitute a warranty that Product will conform to the sample or model. No affirmation of fact or promise made by AS, whether or not in AB's Quotation, shall constitute a warranty that Product will conform to the affirmation or promise. Unless otherwise specified in PAGE 7 of 11 writing in documentation shipped with Product or otherwise agreed by AB in writing,AB does not provide service or support for custom products or other products made to buyer's specifications. THE WARRANTIES IDENTIFIED IN THE FIRST SENTENCE OF THIS PARAGRAPH ARE AB'S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO PRODUCT AND ARE IN LIEU OF ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, ALL OF WHICH OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON -INFRINGEMENT, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), WHETHER ARISING FROM A STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE 8. INTELLECTUAL PROPERTY AND RELATED INDEMNITY. 8.1 BY AB. Subject to the restrictions set forth in this Section 8 and provided buyer complies with its obligations in this Section 8, AB agrees to defend buyer, and indemnify buyer from and against any infringement damages finally awarded, in any legal action or proceeding brought by a third party against buyer to the extent that such action is based on a claim that the manufacture and sale of a Product by AB infringes any United States or foreign patent, copyright, trademark or other intellectual property right of such third party if AB had actual knowledge of such intellectual property right and infringement at the time of delivery of the Product to buyer. Notwithstanding the foregoing, AB shall have no liability or obligation under this Section 8 with respect to any claim of infringement based upon: (i) modifications to any Product made by buyer or a third party; (ii) manufacture, assembly, labeling or branding of Product by AB pursuant to specifications or designs or requests for specific labeling or branding furnished by buyer. Notwithstanding anything herein to the contrary, AB shall have no indemnification obligations with respect to Product originating from a third party and provided under these Terms. Buyer's sole right to indemnification with respect to such third party Product shall be pursuant to the original manufacturer's or licensor's indemnification obligations, if any, to the extent provided by the original manufacturer or licensor. 8.1.1 Buyer's Obligations. Buyer must notify AB in writing of any claim for which it may seek defense and indemnity from AB hereunder promptly after becoming aware of such claim, make no admission of liability with respect to the claim, and cooperate with and provide reasonable assistance to AB, at AS's expense with respect to reasonable out of pocket expenses paid by buyer to third parties for such assistance, in the defense or settlement of such claim. AB shall have sole authority to defend and/or settle any claim under this Section 8. AB's obligations under this Section 8 are contingent upon buyer's compliance with all of the foregoing. 8.1.2 Remedy for Infringement, Rights of AB, Exceptions. If any Product or portion thereof is subject to a suit or other legal proceeding claiming that the Product or such portion infringes a third party's intellectual property right, or in AB's opinion is (are) likely to become subject of such a claim, AB shall, at its option, have the right to either: (a) procure for buyer the right to continue using the Product; or (b) modify the Product so that it becomes non -infringing; or (c) require buyer to return the Product and upon return, refund to buyer the price actually paid by buyer for the Product, less a reasonable amount for use, damage and obsolescence; or(d) substitute for the alleged infringing Product other suitable, non -infringing Products with comparable functionality. 8.1.3 ENTIRE LIABILITY. THE FOREGOING STATES THE ENTIRE LIABILITY OF AB, AND THE EXCLUSIVE REMEDY OF BUYER, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF PATENT, COPYRIGHT, TRADE SECRET OR ANY OTHER INTELLECTUAL PROPERTY RIGHT BY OR IN CONNECTION WITH ANY PRODUCT. 8.2 BY BUYER FOR BUYEJYS MODIFICATIONS OR SPECIFICATIONS. If buyer modifies any Product or furnishes AB with specifications or designs or requests for specific labeling or branding, buyer agrees to defend, indemnify and hold AB harmless against all liabilities, damages, costs, expenses and claims arising from or based upon buyer's modifications or AB's manufacture and sale of Product or other performance in compliance with such specifications or designs or requests for labeling or branding. 9. COMPLIANCE WITH LAWS, USE OF PRODUCT, VALIDATION. Without limiting the generality of the paragraph above entitled "LIMITED WARRANTY," unless otherwise expressly stated in writing by AB, no claim or representation is made or intended (i) as to any clinical use of any Product (whether diagnostic, prognostic, therapeutic, blood banking or any other clinical use), (ii) that any Product has been cleared, approved, registered or otherwise qualified (collectively, "Approval") by AB with any regulatory agency for use In any clinical procedure or for other use requiring compliance with any federal, state, provincial, European or any other governmental agency or regulatory body regulating diagnostic, therapeutic, blood or other clinical products, medical devices or similar products (collectively, "Regulatory Laws"), (iii) that any Product will satisfy the requirements of any governmental body or other organization, including, but not limited to, the United States Food and Drug Administration or the International Organization for Standardization, or ('iv) that any Product or its performance is suitable or has been validated for any specific use or application. Product should not be used for any purpose that would require Approval unless proper Approval is obtained, or, in the case of use in diagnostic laboratory systems and then only to the extent permitted by law, the laboratory has validated its complete system as required by the Clinical Laboratory Improvements Act of 1988, as amended, in the United States or equivalents in other countries. Buyer agrees that if it elects to use Product for a purpose that would subject buyer, its customers or any Product to the jurisdiction of Regulatory Laws or other applicable law, buyer shall be solely responsible for obtaining any required Approvals or other approvals and otherwise ensuring that its use of any Product complies with such laws. Unless otherwise expressly stated in writing, Products have not been tested by or for AB for any particular use or purpose, or for safety or efficacy. Buyer agrees that it is buyer's responsibility, and not AB's, to validate the performance of Products for any specific use or application and to ensure that Products meet applicable regulatory, certification, validation or its other requirements, since the use and performance characteristics of Products have not been validated by AB for any specific use or application, except as may be otherwise expressly set forth by AB in writing. Product should be used in strict accordance with applicable instructions, warnings and other information in user manuals and other Product documentation. 10, FORCE MAJEURE AB shall not be liable for any delay or failure of performance, including without limitation failure to deliver or failure to install, where such delay or failure arises or results from any cause beyond AB's reasonable control, including, but not limited to, flood, fire, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, plant breakdown, computer or other equipment failure, unusually severe weather,earthquake or other act of God, power loss or reduction, strike, lock -out, boycott or other labor disputes of any kind (whether relating to its own employees or others), embargo, governmental regulation or an inability or delay in obtaining materials. In the event of any such delay or failure of performance, AB shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances; and AB shall also have the right, to the extent necessary in AB's reasonable judgment, to apportion Product then available for delivery fairly among its various customers in such manner as AB may consider equitable. 11. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL AS BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS FOR ANY SPECIAL, INCIDENTAL, INDIRECT,EXE MPLARY, PUNITIVE, MULTIPLE OR CONSEQUENTIAL PAGE 8 of 11 DAMAGES SUSTAINED BY BUYER OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR CAUSED BY PRODUCT, AB'S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS RELATING TO THE PURCHASE OF PRODUCT OR PERFORMANCE OF SERVICES,AB'S BREACH OF THESE TERMS, THE POSSESSION OR USE OF ANY PRODUCT, OR THE PERFORMANCE BY AS OF ANY SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT AB IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF DATA, DOWNTIME, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOSS OF REVENUE, PROFITS, GOODWILL. OR BUSINESS OR OTHER FINANCIAL LOSS. 12. SOLE TERMS; INCONSISTENCIES; ORDER OF PRECEDENCE These Terms, together with AB's Quotation, any applicable label license or patent statement or other written conditions of use, any other terms and conditions expressly agreed to in writing by an authorized representative of AB "(collectively, "AB's, Terms"), and buyer's statement on its purchase order (if accepted by AB) of the name or identity of the Product(s) purchased, quantity, delivery date, bill to and ship to address and, if accurate, price (and only such information on buyer's purchase order), constitute the complete, exclusive and entire agreement between AB and buyer with respect to purchases of Product (unless other terms and conditions are expressly designated to be applicable by AB in writing), and AB's offer to sell Product is expressly limited to such terms_ Such terms shall take precedence over and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, and any of buyer's additional or different terms and conditions, which are hereby rejected and shall be void. Buyer's submission of a purchase order or other instrument for or regarding the purchase of Product, whether or not in response to an AS Quotation, shall be deemed acceptance of and agreement to AB's Terms to the exclusion of any other terms and conditions appearing in or referenced in such purchase order (except the name or identity of products purchased, quantity, delivery date, bill to and ship to address and, if accurate, price) or other instrument, which are hereby deemed to be material alterations and notice of objection to which is hereby given , notwithstanding anything contained to the contrary in buyer's purchase order or other instrument or elsewhere. Any acceptance by AB of any offer of buyer is expressly conditioned on buyer's assent to and acceptance of AB's Terms to the extent they are additional or different terms from those of buyer's offer. Except as otherwise provided in these Terms, in the event of an inconsistency between these Terms and the terms appearing on AB's Quotation or other agreement signed by an authorized representative of AB, the terms appearing on AB's Quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these Terms, and all other provisions of these Terms shall remain in full force and effect. 13. NO IMPLIED RIGHTS. Nothing in these Terms shall be deemed or construed (i) as a license or grant of any intellectual property rights, whether express, implied, by estoppel or otherwise; (ii) to limit AB's rights to enforce its patent or other intellectual property rights, including, without limitation, as to use of any Product beyond that granted under any patent or other intellectual property label license or statement applicable to the Product; (iii) as granting buyer any right to be supplied with any Product or component thereof beyond those ordered by buyer and supplied by AB in accordance with these Terms; or (iv) as a license or grant of any right to buyer to manufacture or to have manufactured any Product.-TrKati 14. CHOICE OF LAW. Any contract between AB and buyer relating to Product, including these Terms, nd any dispute relating thereto, shall be governed by and construed in accordance with the laws of the State of , U.S.A., excluding both its choice of law provisions and the United Nations Convention on Contracts for the International Sale of Goods. 15. EXPORT CONTROLS. Buyer agrees that it will not export or transfer Product for re-export in violation of any United States laws or the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of such laws . 16. MISCELLANEOUS. No amendment of AB's Quotation or these Terms or modification thereof shall be binding unless in writing and signed by a duly authorized representative of both AB and buyer. AB's failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these Terms for any other purpose. If any provision of these Terms shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or enforceability, be severed without in any way affecting the remainder of such provision or any other provision thereof, all of which shall continue in full force and effect. 17. ADDITIONAL TERMS AND CONDITIONS OF SALE FOR OLIGONUCLEOTIDE PRODUCTS, INCLUDING SPECIAL TERMS TO PROTECT CUSTOMER CONFIDENTIAL INFORMATION.THE FOLLOWING TERMS AND CONDITIONS OF SALE FOR PRODUCTS THAT ARE OLIGONUCLEOTIDE PRODUCTS, IN ADDITION TO ALL OF THE TERMS AND CONDITIONS OF SALE SET FORTH ABOVE- APPLY TO THE PURCHASE AND SALE OF ALL APPLIED BIOSYSTEMS OLIGONUCLEOTIDE PRODUCTS, INCLUDING TAQMAN(@ASSAYS, TAQMANC&LOW DENSITY ARRAYS AND CUSTOM OLIGONUCLEOTIDE SYNTHESIS PRODUCTS. 17.1 DEFINITIONS. The following definitions apply to these Additional Terms and Conditions of Sale for Oligonucleotide Products. 'Confidential Information of Buyer" means each Nucleic Acid Sequence specified by buyer in writing to AS that is intended to be detected by use of a Custom Product or to be included in primers and probes or other oligonucleotide Products manufactured by AB and sold to buyer, and the facts that buyer placed orders for Products containing or intended to detect such sequence and that buyer ordered oligonucleotide Products from AS containing or intending to detect such sequence. "Custom Product" means (1) an Oligonucleotide Kit that is intended to detect a Nucleic Acid Sequence specified by buyer, or (ii) primers and probes or any other oligonucleotide Product that includes a Nucleic Acid Sequence, or other non -off -the -shelf elements or features, specified by buyer. "Nucleic Acid Sequence" means the nucleic acid sequence of a genome intended to be detected by use of an Oligonucleotide Kit or that is specified as being included in other oligonucleotide Products. "Oligonucleotide Kit" means a Product that consists of a combination of reagents and other products that includes at least one oligonucleotide based primer or probe, that is sold by AB as an assay kit, and the use of which is intended to detect at least one specific nucleic acid sequence in a sample. "Synthesis" means the design (where applicable) or manufacture by AB of Custom Kits or other oligonucleotide Products for delivery to buyer. 17.2 AB'S EVALUATION OF CUSTOM KIT ORDERS. AB may decline the Synthesis, at any stage of the Synthesis process, of any Custom Product ordered by buyer that AB deems to be unsuitable or commercially impractical for Synthesis, whether on technological, cost or other grounds. AB will give written notice to buyer within a reasonable time following its determination to decline Synthesis of a Custom Product, Buyer shall have no obligation to pay any fees for time and materials, or for any other expenses incurred by AB, in connection with any declined Custom Product. All Custom Product orders not declined by AB must be paid for by buyer, and orders may not be cancelled or changed by buyer without the written consent of AB. Buyer understands and agrees that buyer's obligation to pay for ail Custom Products that AB proceeds to Synthesize and deliver is firm and irrevocable, regardless of the number of Custom Products declined for PAGE 9 of 11 Synthesis in a given order. Each purchase order for Custom Products must be for the total amount payable for all Custom Products ordered. The amount corresponding to the charges applicable to declined Synthesis will be reflected in AB's invoice for the order. 17.3 BUYER'S REPRESENTATIONS. By submitting an order, buyer represents, warrants and agrees that (i) buyer will provide AB with all information known to buyer regarding biological, radiological, and chemical hazards associated with the handling, transport, exposure to or other use of any materials supplied to AB by buyer; (ii) buyer has the right to cause the sequences that buyer has requested AB to manufacture to be manufactured by AB and sold to buyer, thatsuch sequences and the manufacture and sale thereof to buyer will not infringe or result from the misappropriation of the intellectual property rights, including without limitation patent, copyright, trademark and trade secrets, of any third party anywhere in the world (provided that the foregoing shall not be deemed a representation or warranty with respect to methods of manufacture employed by AB), and that the materials buyer furnishes to AB will not infringe or result from the misappropriation of any such intellectual property rights; and (iii) the oligonucleotide Products and components thereof sold to buyer shall be for buyer's own internal research and development use only and shall not be resold or otherwise transferred or conveyed to any third party without the prior express written consent of AB. 17.4 CONFIDENTIAL INFORMATION OF BUYER AB agrees that for seven (7) years after the disclosure by buyer to AB of Confidential Information of Buyer, AB shall not disclose such Confidential Information of Buyer to any third party and will use at least the same degree of care as it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care, to prevent the disclosure of such Confidential Information of Buyer to any third party. This undertaking of confidentiality shall not apply to, and AB shall have no obligations under this paragraph with respect to, any Confidential Information of Buyer that (a) was in AB's possession before receipt from buyer, (b) is or becomes a matter of public knowledge or part of the public domain through no fault of AB, (c) is rightfully received by AB from a third party that was not obliged to keep such information confidential, (d) is developed by AB without reference to Confidential Information of Buyer, or (a) is disclosed by AB with buyer's prior written approval. Notwithstanding the foregoing, AB may disclose Confidential Information of Buyer to the extent required to comply with governmental regulations and other applicable laws or to respond to subpoena or other compulsory legal process, provided in all cases that AB takes reasonable and lawful actions to avoid or minimize the extent of such disclosure and notifies buyer in writing as far in advance of the date of disclosure as is reasonably feasible so that buyer to the extent feasible will have an opportunity to seek to prevent or limit disclosure. 17.5 INTELLECTUAL PROPERTY RIGHTS. Any inventions (patentable or otherwise), discoveries, developments, improvements, information, data, compounds, formulae, know-how or other results that are conceived, developed, discovered, reduced to practice, or generated by or for AB or jointly by buyer and AB and that relate or apply to the processes and methods used in or related to the Synthesis of oligonucleotide Products or otherwise in connection with designing or manufacturing oligonucleotide Products, including without limitation primers and probes, shall be and remain the sole and exclusive intellectual property of AB, and buyer hereby transfers and assigns all of its right, title and interest in and to any such joint intellectual property to AB. Buyer will take reasonable steps, upon the request and at the expense of AB, to assist AB to secure, evidence and record AB's rights in such intellectual property. -906 PAGE 10 of 11 APPLIED BIOSYSTEMS PERFORMANCE AGREEMENT TERMS AND CONDITIONS 1. These Performance Agreement Terms and Conditions shall govern all orders for and purchases from Applied Biosystems (herein called "AB") of Performance Plans and other agreements for services relating to instruments and other equipment, including the maintenance, repair, installation, relocation or servicing of instruments and other equipment, and sets forth the agreement between AS and its customer regarding the performance of such services, unless other terms are specifically designated by AS to apply to a specific service (See Section 20 below). 2. Services under all Performance Plans of AS are provided during normal working hours (Monday through Friday, 8:00 AM to 5:00 PM, excluding holidays). Planned maintenance ("Planned Maintenance") will be performed in accordance with AS's Planned Maintenance procedures and checklist for the instrument or component being serviced. 3. The decision to repair or replace any parts of the instrument will be made by AS on the basis of which approach will provide the Customer with the best service. Parts and components replaced or otherwise utilized in the repair of the instrument may be either new or refurbished at the discretion of AS. 4. AS will use reasonable efforts under the circumstances to provide service as quickly as possible. The service will be scheduled at a time mutually agreed upon by AS and the Customer. 5. AS warrants that it will provide its services at least in accordance with generally accepted standards prevailing in the instrument repair industry at the time and place performed. Warranty claims must be made within ninety (90) days after services are performed. AS MAKES NO OTHER WARRANTIES OF ANY KEND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH RESPECT TO ITS SERVICES, WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED. AUS SOLE LIABILITY AND RESPONSIBILITY UNDER THIS AGREEMENT FOR BREACH OF WARRANTY IS RE -PERFORMANCE OF THE SERVICES WITHIN A REASONABLE TIME OR RETURN OF THE FEE PAID FOR THE DEFECTIVE SERVICES AT AS OPTION. THESE ARE LICENSEE'S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY. 6, This Performance Agreement does not cover replacement of parts, costs, repairs or adjustments due to Year 2000 non compliance or for defects caused by or repairs necessitated by acts of nature, misuse, carelessness or unauthorized changes to the instrument made by the Customer, Customer's employees, agents or an unauthorized contractor. This Performance Agreement also does not require AS to repair or replace parts that are radioactive or contaminated with biological, toxic or other dangerous materials or substances. 7. This Performance Agreement does not cover costs, repairs, or adjustments made necessary by connection of the instrument to electrical services or other utilities not in accordance with the installation requirements for the instrument, or by any interruption or surge in voltage (see Instruction Manual for specifications). 8. Payment terms are net 30 days from date of AB's invoice to customer. If payment is not received by the due date, AS may assess and customer agrees to pay a late payment charge at the rate of 1% per month (12% per year) or the maximum legal rate, whichever is less, of the amount due from the due date to the date of payment. If AS retains a collection agency andlor attomey to collect unpaid amounts, AS may invoice customer for, and customer will pay, all costs of collection, including without limitation reasonable attorneys fees. 9. The initial term of this Performance Agreement is one year commencing on the date designated by Applied Biosystems in its quotation or otherwise Specified to Customer. This Performance Agreement may be terminated by either party upon at least thirty (30) days written notice to the other party. Termination will be effective thirty (30) days after the receipt of such notice, or at a later date if one is so specified in the notice ("Termination Date"). Termination cannot be made effective prior to thirty (30) days after notice is received. AS will cease performance under this Performance Agreement on the Termination Date unless the Customer specifies a separate, earlier date in writing ("Cessation Date"). In that event, AB will cease performance under this Performance Agreement on such Cessation Date. 10. In the event of termination of this Performance Agreement under Section 9, AS shall calculate at its sole discretion the total price of services actually performed and expenses actually and reasonably incurred in servicing the covered equipment under this from its effective date until the Termination Date. The Customer's total payment obligation to AB under this Agreement shall equal (1) the amount so calculated or (2) the prorated price of this Agreement from its effective date until the Termination Date, whichever is greater, plus ten percent (10%) of the total fee paid for this Performance Agreement, not to exceed the total amount paid. Any payments made by Customer to AS in excess of this amount shall be credited to the Customer's account within thirty (30) days after the Termination Date toward future purchases of AS instruments, consumables or Performance Plans. Any unpaid portion of this amount shall be immediately due upon Customers receipt of an invoice from AB. 1f a Performance Plan is terminated early in connection with the trade in of a used AS instrument for a new AS instrument, the credit may be applied toward purchase of a Performance Agreement for the new instrument. Contact your AS service representative for details. No cash refunds will be made on account of the early termination of any Performance Plan or other agreement for services. 11. AS will indemnify and hold Customer harmless from and against any and all claims for injury or death of persons, or damage to tangible property, occurring while AS personnel are on Customers premises performing services pursuant to this Agreement to the extent caused by the negligent acts or negligent omissions of AS, provided AS is given prompt notice of any such claim and the opportunity to control the defense and settlement of same. 12. IN NO EVENT SHALL AB BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY OR UNDER ANY STATUTE OR ON ANY OTHER BASIS, FOR SPECIAL, INDIRECT, INCIDENTAL, MULTIPLE, PUNATNE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR FAILURE TO PERFORM SERVICES OR OTHERWISE, EVEN IF AB IS ADVISED IN ADVANCE OF THE POSSIBITY OF SUCH DAMAGES; AND IN NO EVENT SHALL AS BE LIABLE FOR ANY LOSS OR INJURY THAT IS THE RESULT OF INSTRUMENT FAILURE WITHOUT LIMITING THE FOREGOING, EXCEPT SOLELY FOR ANY PAYMENTS MADE UNDER AB'S INDEMNITY SET FORTH IN SECTION 11, AS TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS PERFORMANCE AGREEMENT AND SERVICES RENDERED, IN CONTRACT, TORT, WARRANTY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO AS PURSUANT TO THIS AGREEMENT. 13. Parts in contact with any liquid are considered wetted and may be deemed user replaceable and not covered by this Performance Agreement, including, but not limited to seals, filters, gaskets, etc. 14. Use of any non-AB's parts or reagents that deposit or cause to be deposited residual matter in the instrument flow path or that otherwise interrupt the flow path that are reasonably determined by AS to have caused instrument failure will require remedial repairs of the effected parts to be completed outside the Performance Agreement at AB's then prevailing rates for billable service. 15. Ancillary equipment not manufactured by AS and deemed by AS as non -integral to the system or the operation of the instrument may be excluded from this Performance Agreement. 16. AB makes no representation whatsoever that services under this Agreement satisfy or will satisfy any requirements of any governmental body or other organization, including, but not limited to, any requirement of the United States Food and Drug PAGE 11 of 11 Administration or the Intemational Organization for Standardization. Customer agrees that it is the Customer's responsibility to ensure that such services are adequate to meet its regulation/certification requirements and that all requirements of any governmental body or other organization, including, but not limited to, any requirement of the United States Food and Drug Administration or the International Organization for Standardization are the responsibility of Customer. 17, This Performance Agreement is not assignable or otherwise transferable by Customer. Any assignment or transfer or attempt to assign or to transfer the Performance Agreement by Customer shall be void. 18. AB may require a completed Certificate of Decontamination, or transfer of an instrument to a suitable safe and secure location, as a condition to servicing any instrument. Customer warrants that any instrument or component to be serviced pursuant to this Performance Agreement will be fully decontaminated of radioactive, biological, toxic or other dangerous materials or substances prior to servicing so that the service technician will not be exposed to any such materials. 19, Performance Plans do not include customer training or services related to the relocation of instruments unless otherwise specifically slated in writing by AB in any particular case. 20. This Performance Agreement, together with AB's quotation regarding the Performance Plan or other services subject to these terms and conditions (collectively, "AB's Terms"), represents the entire agreement between the parties and supersedes and entirely replaces (i) any previous agreements between the parties with respect to the subject matter herein and (ii) any pre-printed, standard or other terms set forth in customer purchase order or any other document not signed by an authorized representative of AB, which are hereby rejected and shall be void. Customer's submission of a purchase order or other instrument regarding the purchase of a Performance Plan in response to AB's quotation or any other AB document that includes or incorporates these shall be deemed acceptance of these terms to the exclusion of any other terms and conditions appearing in or referenced in such purchase order or other instrument, which are hereby deemed to be material alterations and notice of objection to which is hereby given, notwithstanding anything contained to the contrary in such purchase order or other instrument or elsewhere. Any acceptance by AB of any otter of customer is expressly conditioned on customer's assent to and acceptance of AB's Terms to the extent they are additional or different terms. Except as otherwise provided in these terms, in the event of an inconsistency between these terms and the terms appearing on AB's quotation or other agreement signed by an authorized representative of AB, the terms appearing on AB's quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these terms, and all other provisions of these terms shall remain in full force and effect. 21, No amendment of these terms or modification thereof shall be binding unless in writing and signed by a duly authorized representative of both AB and customer. AB's failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these terms for any other purpose. If any provision of these terms shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or enforceability, be severed without in any way affecting the remainder of such provision or any other provision thereof, all of which shall continue in full force and effect. No additions or modifications to this Performance Agreement shall be valid unless specifically agreed to in writing by both parties. This Performance Agreement shall be governed by the laws of the Stale of die exclusive of its conflict of laws rules. 'Texas KN� V903 CITY OF LUBBOCK David A. ller, Mayor ATTEST: Re ecca Garza, City Secretary APPROVED AS TO FORM: 'bon Vandiver, Attorney of Council CONTRACTOR Authoriz d Representative Applied Biosystems North America Sales and Service 850 Lincoln Center Drive Foster City, CA 94404 APPROVED AS TO CONTENT: Tommy Camdeg,--F1' alth Director r a TEXAS DEPARTMENT OF STATE HEALTH SERVICES 1 100 W. 49`h Street • Austin, Texas 78756 DAVID L. LAKEY, M.D. 1-888-963-71 I 1 • httt�:r'/w�ti��.dshs.statc.tx.us COMMISSIONER TDD: 512-458-7708 June 20, 2007 City of Lubbock Health Department Laboratory Kim Swacina, Laboratory Director 1902 Texas Avenue Lubbock, Texas 79408 Dear Mrs. Swacma, In response to the request for justification of the purchase of the following equipment: Applied Biosystems, Inc ABI 7500 FAST, I am sending the following Information. In a Laboratory Response Network (LRN) electronic communication dated August 2006, the Centers for Disease Control and Prevention (CDC) addressed the need for the ABI 7500 FAST use in new procedures to develop capabilities for the detection of Bacillus anthraces, Yersinia pestis, Brucella species, and Francisella tularensis. The ABI 7500 FAST equipment is required to perform the new procedures and will give the laboratory the capability of screening multiple threat agents with the added capability of performing a high volume of tests. The equipment presently in the LRN laboratory in Lubbock does not have these capabilities. In closing, The Department of State Health Services Laboratory Services Section, which directs the activities of the eleven Texas LRN laboratories, supports the purchase of the equipment listed above. This purchase supports the Public Health Emergency Preparedness mission. If you have questions, please feel free to contact me at (512) 458-7552 or via email at Grace.Kubin@dshs.state.tx.us. Sincerely, Grace Kubin, Ph.D. Manager, Emergency Preparedness Branch Laboratory Services Section An Equal Employment Opportunity Employer and Provider