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General Terms and Conditions of Maintenance and Support

1. Payment Terms. All prices are firm unless otherwise agreed to in writing. Payment terms shall be net thirty (30) days from date of invoice. GenMark may refuse to render service to Customer until overdue accounts are paid in full. Customer shall pay (or shall reimburse GenMark, as applicable) for all taxes, customs, duties and assessments (exclusive of taxes based on GenMark’ net income) owing with respect to this Agreement or any of the Products or services provided hereunder. If Customer claims an exemption from any such taxes, then Customer shall provide to GenMark appropriate evidence of such exemption and shall be responsible for any taxes GenMark does not withhold based on such exemption and any associated penalties. All amounts not paid by Customer when due are subject to a late payment charge of eighteen percent (18%) per annum simple interest (or, if less, the maximum rate allowed by applicable law) from the due date until the date of payment. A 2.5% processing fee will apply to all credit card payments.

2. Servicing of Products under this Agreement. If, when this Agreement is agreed to by the Parties, any Instrument to be covered by this Agreement is not then covered by an instrument warranty (i.e., the warranty period for such Instrument’s warranty has expired), then, as a condition to GenMark’s obligations under this Agreement, GenMark may inspect such Instrument to determine whether it is then properly functioning in accordance with its GenMark documentation and specifications and, if it is not so properly functioning, may require that such Instrument be repaired (and thus repair such Instrument) so that it does so properly function. Any time, materials and expenses (including, without limitation, parts and travel expenses) incurred by GenMark in any such inspection or repair are not covered by this Agreement and shall be payable by the Customer in accordance with Section 12 of this Agreement. Subject to the provisions of this Agreement:  GenMark will, during the Support Period, (a) repair such Product so that it does, upon such repair, perform in accordance, in all material respects, with such specifications, or (b) replace such Instrument with a conforming Instrument. GenMark shall have no obligation under the preceding sentence if, with respect to the Product at issue, the problem affecting such Product results from or relates to any Unsupported Cause. The foregoing provisions of this paragraph set forth GenMark’s sole liability for, and the Customer’s sole remedy for, any failure of a Product, following expiration of its Product warranty, to perform in accordance with its Product specifications.

3. Telephone Support Hours and Reporting of Support Issues to GenMark. Throughout the Support Period, GenMark Support Personnel (as such term is defined below) will be available by telephone (800-373-6767, as of the Effective Date) from 7:00 a.m. to 5:00 p.m. Pacific Standard Time, each business day, and live representatives at GenMark’s message center will be available by telephone (via the same number, as of the Effective Date) at all other times. If the Customer experiences any problem with any Product or otherwise desires technical support assistance from GenMark concerning any Product, then the Customer promptly and without delay will have one of its Customer Support Contacts report such problem or request such assistance by calling the above listed telephone number (or such other number of which GenMark notifies the Customer). As used herein, “Support Personnel” means GenMark’s technical support representatives and field service representatives, including, without limitation, any such representatives that are contractors to GenMark. As used herein, “Customer Support Contact” means any Customer employee who has been trained by GenMark or its authorized representative in, and who has a comprehensive working proficiency in, the features, functionality and use of the Products.

4. Technical Support to the Customer. GenMark through its Support Personnel will respond to each technical support call that is made by any Customer Support Contact in accordance with Section 3 of this Agreement. Such response may include telephone support, on-site support (which may include application troubleshooting) or both, as determined by GenMark in its reasonable discretion based in each instance on the facts and circumstances then-known to GenMark. With respect to any technical support issue that GenMark determines requires on-site support at the Customer’s facility, GenMark will dispatch one or more Support Personnel to such facility, normally within 48 business hours after GenMark has logged the corresponding Customer Support Contact’s technical support call to GenMark. Any such on-site technical support will be provided between the hours of 7:00 a.m. to 5:00 p.m., Customer’s local time, on a business day.

5. Operator Training. From time to time during the Support Period, the Customer may adopt or validate a new type of reagent or assay from GenMark’s product catalog, and, if requested by the Customer in connection with such adoption or validation, GenMark will provide the Customer with on-site Product training as reasonably requested with respect to such newly adopted/validated reagent or assay. Such training will take place at the Customer’s facility or such other place as the parties mutually agree, at times mutually agreeable to the parties (provided that any such on-site training will be provided between the hours of 8:00 a.m. to 5:00 p.m., Customer’s local time, on business days only).

6. Insurance.

a. During the term of this Agreement Customer will obtain and maintain, at its own expense, the following coverage(s):

• Commercial General Liability: Shall include contractual liability, personal advertising injury and products/completed operations coverage for limits not less than $1,000,000 per occurrence and $2,000,000 in the aggregate.
• Workers’ Compensation: Limits in accordance with Statutory Requirements, and Employers Liability limits not less $1,000,000.
• Excess/Umbrella Liability: Customer may use any combination of primary and Excess/Umbrella policies to meet the minimum recommended insurance policy limit requirements referenced above.

b. During the term of this Agreement, GenMark will obtain and maintain, at its own expense, or have the option to self-insure, the following coverages:

• Commercial General Liability: Shall include contractual liability and personal advertising injury with limits not less than $1,000,000 per occurrence and $2,000,000 in the aggregate.
• Workers’ Compensation Coverage: Limits in accordance with statutory (aka state) requirements, and Employers Liability with limits not less than $1,000,000.
• Regulatory Proceedings Fines & Penalties up to limits of $2,500,000.

7. Preventative Maintenance. GenMark’s Support Personnel will perform an annual preventative maintenance service on the Instruments at a time during each calendar year of the Support Period that is mutually agreeable to the parties; provided that any such preventative maintenance service may be performed in conjunction with any other GenMark service visit or call to the Customer. Such preventative maintenance service typically will include an evaluation of Instrument performance and any calibrations, alignments, lubrication and parts repair or replacement as deemed necessary in the discretion of the performing Support Personnel. The Customer agrees to reasonably cooperate with GenMark in the scheduling and performance of each such annual preventative maintenance service.

8. Software Updates and Upgrades to the Instrument. GenMark shall provide to the Customer, as part of the services under this agreement, those Software Updates that GenMark generally releases to its customer base from time to time during the Support Period. The Customer acknowledges that during the Support Period GenMark may also make available to the Customer Software Upgrades for additional fees beyond those otherwise payable by the Customer with respect to this Agreement. The Customer’s implementation of Software Updates is mandatory under this Agreement, but the Customer’s implementation of any Software Upgrade shall be in the Customer’s sole discretion. The Customer shall implement each Software Update as promptly as reasonably practicable after it is made available and shall sign and promptly return to GenMark any form of acknowledgement reasonably required by GenMark to evidence such implementation. Any implementation by the Customer of any Software Update or Software Upgrade shall be in accordance with reasonable instructions specified by GenMark. GenMark provides no representations, warranties or promises regarding the frequency, timing, features or functionality of Software Updates or Software Upgrades. As used herein: “Software Update” means any release of GenMark software that GenMark requires for continued use of the Instruments or other Products; and “Software Upgrade” means any release of GenMark software which GenMark does not require for continued use of any Instrument or other Product. Software Upgrades typically consists of enhanced functionality or new features.

9. Replacement Parts. In effecting any repair of a non-conforming Product, GenMark may, at its option, use new or reconditioned parts or modules that have been remanufactured to meet the same material performance standards as new parts or modules.

10. Shipping. GenMark will cover the shipping and handling costs for shipping any repaired or replacement Products or Product parts to/from the Customer under this Agreement provided, however, that GenMark shall not cover, and the Customer shall be responsible for, all shipping, handling and other costs where the problem affecting the Product at issue results from or relates to any Unsupported Cause or from Customer’s breach of or non-compliance with Section 11 below. The Customer shall not return any Product to GenMark unless in compliance with the requirements of this Agreement.

11. Certain Customer Covenants. The Customer agrees that it: (i) will provide the Support Personnel with all cooperation and information reasonably requested with respect to the provision of technical support or other services hereunder to the Customer. Including, without limitation, any access reasonably requested by Support Personnel to the Products and Customer facility at issue. In any particular instance, GenMark shall have the right to delay the dispatch or provision of technical support or other services hereunder to the Customer in response to any Customer failure to comply with any of the foregoing; (ii) shall not, and shall not authorize or allow any third party to, alter, modify, repair or service any of the Products or attempt to do any of the foregoing, unless and then only to the extent expressly authorized in writing by GenMark prior to the alteration, repair or service at issue; (iii) shall ensure that each person who operates or uses any Product has been trained by GenMark or its authorized representative in, and has a comprehensive working proficiency in, the features, functionality and use (including, without limitation, restrictions on use) of such Product; (iv) shall maintain the Products in a proper and adequate environment, as such is specified in the applicable Product documentation (including, without limitation, user manuals and product inserts); and (v) shall not, and shall not authorize or allow any third party to, move or relocate any Instrument, unless and then only to the extent expressly authorized in writing by GenMark prior to move or relocation at issue.

12. Unsupported Causes. In the case of any Product problem that results from or relates to any Unsupported Cause(s) (each of the following being an “Unsupported Cause”):  (i) the Product fails, malfunctions or is damaged, or the non-conformity or defect arises, as a result of any improper, incorrect or unauthorized handling, storage, installation, shipping, use, maintenance, removal, modification, services or repair; (ii) the Product is accidentally damaged or is subjected to abuse or neglect (including, without limitation, any damage that arises from environmental or operational conditions, such as, but not limited to, electrostatic discharge, externally caused short circuits, incorrect voltages or other improper external inputs); (iii) the Product is modified or altered where the modification or alteration was not provided by or expressly authorized in writing by GenMark; (iv) the Product is damaged such that GenMark is unable to verify the nonconformity or defect in the normal course of Product testing; (v) in the case of an Instrument, the Instrument is moved or relocated by anyone other than a GenMark authorized service technician unless GenMark approves in writing such move or relocation prior to the occurrence thereof; or (vi) the Product is used in combination with any technology, hardware, software, product, material and/or other property (including, without limitation, any chemicals and reagents) not supplied by GenMark or expressly authorized in writing by GenMark or the applicable Product documentation (including, without limitation, label claims and product inserts) or to Customer’s breach of or non-compliance with Section 11 above, GenMark will use reasonable efforts to assist the Customer and remedy such problem, but any failure of GenMark to remedy or otherwise alleviate such problem will not be a breach of any of GenMark’s representations, warranties or obligations under this Agreement. GenMark may, in its discretion, charge the Customer at GenMark’s then-prevailing rates for time and materials spent in providing any such assistance or in providing any services that GenMark is not required by this agreement to provide, for any Products (or Product parts) provided to Customer in connection with such assistance or services, and for GenMark’s reasonably related expenses incurred in connection with such assistance or services.

13. Equal Opportunity. This Agreement shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60–741.5(a). These various regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment qualified protected veterans, individuals with disabilities or other individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.

14. Independent Contractor. The relationship of the parties shall be that of independent contractors. Neither party is authorized to act as the agent of the other, nor shall either party be bound by the acts of the other.

15. Preparations with Hazardous Substances. GenMark’s assays and reagents may contain substances that are hazardous to work with, the known dangers of which are separately mentioned on the labels of the packages or in package inserts. Handling should be only as instructed and by qualified trained personnel.