MICC PWS for MSD FY25_1Oct02024.docx

PERFORMANCE WORK STATEMENT (PWS) TEMPLATE

U.S. Army Medical Center of Excellence (MEDCoE) Molecular Diagnostics Training Fort Sam Houston, TX 78234-6100

FOR

MESOSCALE DEFENSE

SECTOR PR2 MODEL 1800 SERVICE PACKAGE

PART 1

GENERAL INFORMATION

1. General: This is a non-personal services contract to provide extended warranty service for the Mesoscale Defense Sector PR2 Model 1800 system(s). The government shall not exercise any supervision or control over the contract service providers performing the services herein. Such contract service providers shall be accountable solely to the contractor who, in turn, is responsible to the government.

1.1 Description of Services/Introduction: The contractor shall provide all personnel, equipment, supplies, facilities, transportation, tools, materials, supervision, and other items and non-personal services necessary to perform extended warranty service for the Mesoscale Defense Sector PR2 Model 1800 system(s) as defined in this performance work statement except for those items specified as government furnished property and services. The contractor shall perform to the standards in this contract.

1.2 Background: The Analytical Devices (JBAIDS, NGDS, NGDS2, and CALS- FC/ACS) Training Programs are on-going SME support and training programs that utilize several different laboratory analyzers. Officer, enlisted, and civilian personnel from all Services attend the training to become certified Operators of the laboratory analyzer systems.

1.3 Objectives: The overarching primary objective is to provide maintenance support/service to laboratory analyzers to provide operational teaching equipment.

1.4 Scope: Services include providing maintenance and support services for the instruments under the Total Service Package on the attached quotation, on-site for one year (with possible option years).

1.5 Period of Performance: The period of performance shall be for a twelve (12)-month base (09 Nov 2024 to 08 Nov 2025) with two (2) option periods. Option 1 will be from 09 Nov 2025 to 08 Nov 2026; option 2 will be from 09 Nov 2026 to 31 Dec 2026.

1.6 General Information

1.6.1 Quality Control: Not applicable.

1.6.2 Quality Assurance: The contractor will provide a Field Service Report upon completion of service visit either in paper or electronic form. A QASP waiver will be in place.

1.6.3 Federal Government Holidays: The contractor is not required to perform services on the following Federal holidays:

1.6.4 Hours of Operation: The contractor is responsible for conducting business, between the hours of 0800 and 1700 Monday through Friday except federal holidays or when the government facility is closed due to local or national emergencies, administrative closings, or similar government directed facility closings. For other than firm fixed price contracts, the contractor will not be reimbursed when the government facility is closed for the above reasons. The contractor must at all times maintain an adequate workforce for the uninterrupted performance of all tasks defined within this PWS when the government facility is not closed for the above reasons. When hiring personnel, the contractor shall keep in mind that the stability and continuity of the workforce are essential.

1.6.5 Place of Performance: The work to be performed under this contract will be performed at government facilities. The primary duty site will be MEDCoE, building 2841 (address below)

U.S. Army Medical Center of Excellence 3599 Winfield Scott Road, Building 2841, STE 0310 Fort Sam Houston, TX 78234

Point of Contact: Lisa A. Perez Phone: 210-221-6907 E-Mail: lisa.a.perez18.civ@army.mil

1.6.6 Type of Contract: The government will award a Firm Fixed Price Contract.

1.6.7 Security Requirements: Contractor personnel (to include subcontractors) performing work under this contract will require sponsorship to enter base property.

1.6.7.1 Physical Security: The contractor shall be responsible for safeguarding all government equipment, information and property provided for contractor use. Contractor will only be allowed during standard work hours of 800-1700 amd work days Monday through Friday for servicing of the equipment with government employee supervision. At the close of each work period, government facilities, equipment, and materials shall be secured.

1.6.7.2 Key Control. The contractor shall establish and implement methods of making sure all keys/key cards issued to the contractor by the government are not lost or misplaced and are not used by unauthorized persons. NOTE: All references to keys include key cards. No keys issued to the contractor by the government shall be duplicated and will be returned when contractor has completed service visit.

1.6.7.2.1. In the event keys, other than master keys, are lost or duplicated, the contractor shall, upon direction of the contracting officer, re-key or replace the affected lock or locks; however, the government, at its option, may replace the affected lock or locks or perform re-keying. When the replacement of locks or re-keying is performed by the government, the total cost of re-keying or the replacement of the lock or locks shall be deducted from the monthly payment due the contractor. In the event a master key is lost or duplicated, all locks and keys for that system shall be replaced by the government and the total cost deducted from the monthly payment due the contractor.

1.6.7.2.2. The contractor shall prohibit the use of government issued keys/key cards by any persons other than the contractor’s employees. The contractor shall prohibit the opening of locked areas by contractor employees to permit entrance of persons other than contractor employees engaged in the performance of assigned work in those areas, or personnel authorized entrance by the contracting officer.

1.6.7.3 Lock Combinations. Not applicable.

1.6.8 Personal Identity Verification (PIV). Not applicable.

1.6.9 Visit Notification. Contractor will coordinate services with government prior to travel to facility. Contractor will notify government personnel upon arrival to the facility.

1.6.10 Special Qualifications: Not applicable.

1.6.11 Post Award Conference/Periodic Progress Meetings: Not applicable.

1.6.12 Contracting Officer Representative (COR): The COR will be identified by separate letter. The COR monitors all technical aspects of the contract and assists in contract administration. The COR is authorized to perform the following functions: assure that the contractor performs the technical requirements of the contract; perform inspections necessary in connection with contract performance; maintain written and oral communications with the contractor concerning technical aspects of the contract; issue written interpretations of technical requirements, including government drawings, designs, and specifications; monitor contractor's performance and notify both the contracting officer and contractor of any deficiencies; coordinate availability of government furnished property; and provide site entry of contractor personnel. A letter of designation issued to the COR, a copy of which is sent to the contractor, states the responsibilities and limitations of the COR, especially with regard to changes in cost or price, estimates or changes in delivery dates. The COR is not authorized to change any of the terms and conditions of the resulting order.

1.6.13 Key Personnel: Not applicable.

1.6.14 Identification of Contractor Employees: Not applicable.

1.6.15 Anti-Terrorism and Operations Security Requirements: Not applicable.

1.6.16. Supervision of Contractor Employees: The government will not exercise any supervision or control over contractor or subcontractor employees while performing work under the contract. Such employees shall be accountable solely to the contractor, not the government. The contractor, in turn, shall be accountable to the government for contractor or subcontractor employees.

1.6.17 Contractor Travel. Not applicable.

1.6.18 Other Direct Costs. Not applicable.

1.6.19 Data Rights. Not applicable.

1.6.20 Organizational Conflict of Interest:

a. Purpose. The primary purpose of this clause is to aid in ensuring that:

(1) The Contractor does not obtain an unfair competitive advantage by establishing the ground rules for a future competition;

(2) The Contractor's objectivity and judgment are not biased because of its present or future interests (financial, contractual, organizational, or otherwise) which relate to work performed under this contract; and

(3) The Contractor does not obtain an unfair competitive advantage by virtue of its access to non-public or proprietary information belonging to others.

b. Definitions.

(1) The term “Contractor” herein used means: (a) the organization (hereinafter referred to as "it" or "its") entering into this agreement with the Government; (b) all business organizations with which it may merge, join or affiliate now or in the future and in any manner whatsoever, or which hold or may obtain, by purchase or otherwise, direct or indirect control of it; (c) its parent organization if any and any of its present or future subsidiaries, associates, affiliates, or holding companies, and; (d) any organization or enterprise over which it has direct or indirect control now or in the future.

(2) The term "proprietary information" for purposes of this clause means any information considered so valuable by its owners that it is held secret by them and their licensees. Information furnished voluntarily by the owner without limitations on its use, or which is available without restrictions from other sources, is not considered proprietary.

c. Organizational Conflicts of Interest Examples. The following examples illustrate situations in which organizational conflicts of interest may arise. These examples are not all inclusive.

(1) Biased Ground Rules. This type of conflict may arise in situations where a company sets the ground rules for a future competition. For example, when a Contractor develops requirements then competes to provide products or services to satisfy those requirements, thus obtaining a competitive advantage.

(2) Impaired Objectivity. This type of conflict may exist where a Contractor’s obligations under a contract require objectivity, but another role of the Contractor casts doubt on its ability to be truly objective. An example of this type of conflict is where a Contractor’s work under one contract entails evaluating itself, its affiliates, or its competitors under a separate contract.

(3) Unequal Access to Information. This type of conflict may arise when a Contractor has access to nonpublic or proprietary information as part of its performance under a contract that gives it an unfair advantage in a competition for a later contract.

d. General Constraints. The provisions of FAR Subpart 9.5, Organizational and Consultant Conflicts of Interest, concerning organizational conflicts of interest govern this contract. Potential conflicts may exist in accordance with FAR 9.505-1, Providing Systems Engineering and Technical Direction, through 9.505-

4, Obtaining Access to Proprietary Information. In this regard, the Contractor is responsible for identifying any actual or potential organizational conflicts of interest to the Contracting Officer that arise as the result of performance under this contract. To avoid or mitigate a potential conflict related to performance under this contract, the Contracting Officer will impose appropriate constraints such as the constraints discussed below. Since it is impossible to foresee all of the circumstances that might give rise to organizational conflicts of interest, the constraints discussed below are not all inclusive and the Contracting Officer may impose constraints other than, or in addition to, the constraints listed below.

(1) The Contractor agrees that if it provides, under a contract or task order or delivery order, systems engineering and technical guidance for systems and programs, but does not have overall contractual responsibility, it will not be allowed to be awarded a contract or task or delivery order to supply the system or any of its major components or be a Subcontractor or consultant to a supplier of the system or any of its major components

(2) The Contractor agrees that if it prepares complete specifications for non-developmental items or assists in the preparation of work statements for a system or services under a contract or task order or delivery order, it shall not be allowed to furnish these items, either as a prime Contractor, a Subcontractor or as a consultant.

(3) The Contractor agrees that it shall neither evaluate nor advise the Government with regard to its own products or activities. The Contractor shall objectively evaluate or advise the Government concerning products or activities of any prospective competitors.

(4) The Contractor agrees that if it gains access to proprietary information of other companies, it shall exercise diligent effort to protect such proprietary information from unauthorized use or disclosure. In addition, the Contractor agrees to protect the proprietary information of other organizations disclosed to the Contractor during performance of this contract with the same caution that a reasonably prudent Contractor would use to safeguard highly valuable property. The Contractor also agrees that if it gains access to the proprietary information of other companies it shall enter into written agreements with the other companies to protect their information from unauthorized use or disclosure for as long as it remains proprietary and to refrain from using the information for any purpose other than that for which it was furnished. The Contractor shall provide copies of such agreements to the Contracting Officer.

(5) If the Contractor, in the performance of this contract, obtains access to plans, policies, reports, studies, financial plans, data or other information of any nature which has not been released or otherwise made available to the public, the Contractor agrees that without prior written approval of the Contracting Officer, it shall not: (a) use such information for any private purpose unless the information has been released or otherwise made available to the public, or (b) release such information unless release is otherwise authorized under the contract or such information has previously been released or otherwise made available to the public by the Government.

e. Non-Disclosure Agreements. The Contractor shall obtain from each employee who has access to proprietary information under this contract, a written agreement which shall in substance provide that such employee shall not, during his/her employment by the Contractor or thereafter, disclose to others or use for their benefit, proprietary information received in connection with the work under this contract. The Contractor shall educate its employees regarding the restrictions so that they shall not use or disclose proprietary information or data generated or acquired in the performance of this contract except as provided herein.

f. Training. The Contractor shall effectively educate its employees, through formal training, company policy, information directives and procedures, in an awareness of the legal issues so that each employee shall know and understand the bsolute necessity of safeguarding information from anyone other than the Contractor's employees who have a need to know, and the U.S. Government.

g. Subcontracts. The Contractor agrees that it shall include the provisions in paragraphs d., e., and f. above and this paragraph in consulting agreements, teaming agreements, and subcontracts of all tiers which involve access to information or the performance of services described in paragraph d. above. The use of this clause in such agreements shall be read by substituting the word "consultant" or "Subcontractor" for the word "Contractor" whenever the latter appears.

h. Additional Constraints. If this contract provides for the issuance of task or delivery orders, such orders may impose additional requirements and restrictions relating to this clause to include the requirement for the Contractor and its Subcontractors and employees to furnish the Government with written non-disclosure agreements or statements of no conflict of interest. With regard to any proposal submitted by the Contractor in response to a Request for Task or Delivery Order Proposal, by submitting its proposal the Contractor represents that it has disclosed to the Contracting Officer, prior to the issuance of the task or delivery order, all facts relevant to the existence or potential existence of organizational conflict of interest.

i. Conflicts Involving Future Procurements. The award of this contract, task or delivery orders issued under this contract, Government taskings, or acquiescence in the Contractor’s performance of services hereunder shall not constitute or be interpreted as a determination that the Contractor is eligible to participate in future procurements, developmental efforts, implementation efforts, or related activities. Only the Contracting Officers for such efforts, applying the rules, principles, and procedures have the authority to determine whether a conflict exists in connection with such procurements.

j. Representations and Disclosures.

(1) The Contractor represents that it has disclosed to the Contracting Officer, prior to award of this contract, all facts relevant to the existence or potential existence of organizational conflict of interest.

(2) The Contractor represents that if it discovers an organizational conflict of interest or potential conflict of interest after award of this contract, a prompt and full disclosure shall be made in writing to the Contracting Officer. This disclosure shall include a description of the action the Contractor has taken or proposes to take in order to avoid or mitigate such conflict.

k. Remedies and Waiver.

(1) For breach of any of the above restrictions or for non-disclosure or misrepresentation of any relevant facts required to be disclosed concerning this contract, the Government may terminate this contract for default, disqualify the Contractor for subsequent related contractual efforts, and pursue such other remedies as may be permitted by law or this contract. If, however, in compliance with this clause, the Contractor discovers and promptly reports an organizational conflict of interest (or the potential thereof) subsequent to contract award, the Contracting Officer may terminate this Contract or any task or delivery order issued under this Contract for convenience if such termination is deemed to be in the best interest of the Government.

(2) The parties recognize that this clause has potential effects which will survive the performance of this contract and that it is impossible to foresee each circumstance to which it might be applied in the future. Accordingly, the Contractor may at any time seek a waiver from the cognizant Contracting Officer by submitting a full written description of the requested waiver and the reasons.

1.6.21 COMBAT TRAFFICKING IN PERSON.

IAW FAR 52-222-50. Contractor Requirements.

The Contractor shall –

(1) Notify its employees of

(i) The U.S. Government's zero tolerance policy.

(ii) Actions that will be taken against employees for violations of this policy.

(2) Take appropriate action.

Part II, Trafficking in Persons (TIP)

1. The Contractor has a procedure for notifying employees of TIP and proof of such notification on file via:

i. Training records or

ii. Employee signature

2. Has documented actions on file citing appropriate action to TIP violations.

3. Record of documented violations to date (if any).

4. The Contractor has a procedure for notifying the Contracting Officer if information is received or actions related to TIP are observed.

1.6.22. IAW FAR 39.2, (Applicable to IT services only): HQIIS shall be compliant with Section 508, an amendment to the United States Workforce Rehabilitation Act of 1973. The Contractor shall ensure all HQIIS applications are accessible to people with disabilities and that current and future requirements to maintain compliance with Section 508 are met.

1.6.23 PHASE IN /PHASE OUT PERIOD. Not applicable.

PART 2

DEFINITIONS & ACRONYMS

2. DEFINITIONS AND ACRONYMS:

2.1. DEFINITIONS:

2.1.1. CONTRACT ADMINISTRATOR. The official government representative delegated authority by the contracting officer to administer a contract. This individual is normally a member of the appropriate contracting/procurement career field and advises on all technical contractual matters.

2.1.2. CONTRACTOR. A supplier or vendor awarded a contract to provide specific supplies or services to the government. The term used in this contract refers to the prime.

2.1.3. CONTRACTING OFFICER. A person with authority to enter into, administer, and/or terminate contracts, and make related determinations and findings on behalf of the government. Note: The only individual who can legally bind the government.

2.1.4. CONTRACTING OFFICER'S REPRESENTATIVE (COR). An employee of the U.S. government appointed by the contracting officer to administer the contract. Such appointment shall be in writing and shall state the scope of authority and limitations. This individual has authority to provide technical direction to the contractor as long as that direction is within the scope of the contract, does not constitute a change, and has no funding implications. This individual does not have authority to change the terms and conditions of the contract.

2.1.5. DEFECTIVE SERVICE. A service output that does not meet the standard of performance associated with the performance work statement.

2.1.6. DELIVERABLE. Anything that can be physically delivered, but may include non-manufactured things such as meeting minutes or reports.

2.1.7. GOVERNMENT-FURNISHED PROPERTY (GFP) OR GOVERNMENT PROPERTY (GP). Property in the possession of, or directly acquired by, the government and subsequently made available to the contractor.

2.1.8. KEY PERSONNEL. Contractor personnel that are evaluated in a source selection process and that may be required to be used in the performance of a contract by the key personnel listed in the PWS. When key personnel are used as an evaluation factor in best value procurement, an offer can be rejected if it does not have a firm commitment from the persons that are listed in the proposal.

2.1.9. PHYSICAL SECURITY. Actions that prevent the loss or damage of government property.

2.1.10. QUALITY ASSURANCE. The government procedures to verify that services being performed by the contractor are acceptable in accordance with established standards and requirements of this contract.

2.1.11. QUALITY ASSURANCE SPECIALIST. An official government representative concerned with matters pertaining to the contract administration process and quality assurance/quality control. Acts as technical advisor to the contracting officer in these areas.

2.1.12. QUALITY ASSURANCE SURVEILLANCE PLAN (QASP). An organized written document specifying the surveillance methodology to be used for surveillance of contractor performance.

2.1.13. QUALITY CONTROL. All necessary measures taken by the contractor to assure that the quality of an end product or service shall meet contract requirements.

2.1.14. SUBCONTRACTOR. One that enters into a contract with a prime contractor. The government does not have privity of contract with the subcontractor.

2.1.15. WORK DAY. The number of hours per day the contractor provides services in accordance with the contract.

2.1.16. WORK WEEK. Monday through Friday, except for federal holidays unless specified otherwise.

2.2. ACRONYMS:.

PART 3

GOVERNMENT FURNISHED PROPERTY, EQUIPMENT, AND SERVICES

3. GOVERNMENT FURNISHED ITEMS AND SERVICES:

3.1. Services: The government will provide personnel as needed to guide vendor to instrumentation.

3.2 Facilities: Work will be performed on the Government installation, and the Government will provide adequate physical work-space, office space, and laboratory facilities, and the standard items to outfit such facilities.

3.3 Utilities: The government will provide all utilities for the facility for the contractor’s use in performance of tasks outlined in the PWS. The contractor (to include subcontractors) shall instruct employees in utilities conservation practices. The contractor shall be responsible for operating under conditions that preclude the waste of utilities, which include turning off the water faucets or valves after using the required amount to accomplish cleaning vehicles and equipment.

3.4 Equipment: The government will provide: 3 PR2 1800 instruments. Model number: Sector PR2 Model 1800; Serial Numbers: 18002010010439, 18002010010440, 180021082230487

3.5 Materials: N/A

PART 4

CONTRACTOR FURNISHED ITEMS AND SERVICES

4. CONTRACTOR FURNISHED ITEMS AND RESPONSIBILITIES:

4.1 General: The contractor shall furnish all supplies, equipment, facilities and services required to perform work under this contract that are not listed under Section 3 of this PWS.

4.2 Secret Facility Clearance: N/A

4.3. Materials. The contractor shall furnish all supplies, equipment, and services required to perform work under this contract that are not listed under Part 3 of this PWS.

4.4. Equipment. The contractor shall furnish all supplies, equipment, and services required to perform work under this contract that are not listed under Part 3 of this PWS.

PART 5

SPECIFIC TASKS

5. Specific Tasks:

5.1. Basic Services. The contractor shall provide services for Service and Maintenance Contract for 2 PR2 1800 instruments in accordance with the Total Service Package (7.1 Technical Exhibit I). Model number: Sector PR2 Model 1800; Serial Numbers: 18002010010439, 18002010010440, 180021082230487

5.2. Task Heading. See attached “Instrument Service Terms and Conditions.”

5.3. Service Contract Report (SCR): Not Applicable.

PART 6

APPLICABLE PUBLICATIONS

6. APPLICABLE PUBLICATIONS (CURRENT EDITIONS)

6.1. The contractor (to include sub-contractors) must abide by all applicable regulations, publications, manuals, and local policies and procedures.

PART 7

ATTACHMENT/TECHNICAL EXHIBIT LISTING

7. ATTACHEMENT/TECHNICAL EXHIBIT LIST:

7.1 Attachment 1/Technical Exhibit 1 – Performance Requirements Summary Contractor will follow MSD- Instrument Services Terms and Conditions for Total Service Packages

7.2 Attachment 2/Technical Exhibit 2 – Deliverables Schedule

TECHNICAL EXHIBIT 1

INSTRUMENT SERVICES TERMS AND CONDITIONS

1. TOTAL SERVICE PACKAGES.

1.1. Services. If Customer has purchased a Total Service

Package, MSD will use its commercially reasonable efforts to provide during normal business hours maintenance and support services for the instrument(s) identified on the attached quotation (individually, “Instrument” and collectively, “Instruments”) within the timeframes indicated for the applicable service package after notification is received from Customer that such Instrument has failed to operate in accordance with the applicable product description. Depending upon the type of package purchased, MSD will also conduct one (1) or two (2) preventative maintenance visit(s) per twelve (12)-month period at the facility where the Instrument is located (each a “Customer Location”). In the event that there are multiple Instruments at the same Customer Location, MSD may conduct preventative maintenance for all such Instruments during the same visit.

1.2. Fees. Fees for the Total Service Package will be invoiced annually in advance and are not refundable or pro-ratable, except as agreed in writing by MSD. If Customer requests any services outside of normal business hours, charges for those services may be invoiced after completion of such services at MSD's thencurrent hourly fees.

1.3. Term. The Total Service Package will continue in effect

for the period set forth on the quotation attached hereto..

1.4. Termination. In the event of a failure of Customer to pay any fees as provided herein, MSD may terminate the Total Service Package immediately upon written notice to the Customer. In addition, MSD shall have the right, in its sole discretion, to immediately terminate the Total Service Package, in whole or in part, upon written notice to Customer in the event that Customer

(a) uses the Instruments for purposes other than research purposes, including without limitation, for human or veterinary diagnostic or treatment purposes (each a “Prohibited Use”); (b) copies the Instruments, in whole or in part, modifies or creates derivative versions of the Instruments, or disassembles, decompiles, or reverse engineers the Instruments (each a “Prohibited Action”); or

(c) rents, leases, loans, sells, manufactures, distributes, disposes of, assigns, pledges, encumbers, sublicenses or otherwise transfers (whether with or without consideration or whether voluntarily or involuntarily) the Instruments (each a “Prohibited Transfer”).

2. IQ/OQ/PQ SERVICES. If Customer has purchased installation qualification/operational qualification/performance qualification services (“IQ/OQ/PQ Services”) for an Instrument, MSD will use its commercially reasonable efforts to provide during normal business hours IQ/OQ/PQ Services for the Instrument to support Instrument validation. Fees will be invoiced at the amount set forth on the quotation upon completion of such service.

3. PREVENTATIVE MAINTENANCE SERVICES. If Customer has purchased separate preventive maintenance services outside of a Total Service Package, MSD will use its commercially reasonable efforts to provide one (1) scheduled preventative maintenance visit for the Instruments. Fees will be invoiced in advance at the amount set forth on the quotation.

4. HOURLY REPAIRS AND SERVICES. MSD will use its commercially reasonable efforts to provide during normal business hours the repairs and services listed on the quotation attached hereto. Fees will be invoiced at the rates set forth on the quotation.

5. HOURS OF SERVICE. MSD shall provide all services during its normal business hours of between 8:30 a.m. and 5:00 p.m., Monday through Friday, excluding holidays observed by MSD. In the event that MSD provides services outside of these hours at the request of Customer, such services may be provided at MSD’s then-current rate.

6. REPLACEMENT PARTS. In connection with Total Service Packages, replacement parts will be installed on an exchange basis at no additional charge to Customer when such replacement is effected by MSD. In all other cases, replacement parts are not included and will be charged accordingly. Replaced parts shall become the property of MSD. If MSD ships replacement parts to Customer in advance of performing any services, Customer shall bear the burden of storing such replacement parts in a secure facility at the Customer Location in accordance with any storage or handling instructions provided by MSD.

7. FIELD SERVICE REPORT. Upon completion of a visit at a Customer Location, MSD will provide Customer an electronic field service report that describes the services provided by MSD.

8. CUSTOMER OBLIGATIONS. Customer agrees to notify MSD promptly of any Instrument failure. Customer agrees to provide access to Instruments and adequate working space, including heat, light, ventilation, electric current and outlets, and telephone lines for use by MSD’s representative dispatched by MSD to perform the services on an Instrument (“Technical Service Representative”). Customer shall cooperate with the Technical Service Representative and provide basic diagnostic and other information as reasonably requested, including, without limitation, a description of any problems or failures in the Instruments observed by Customer. Instruments shall be maintained by Customer in accordance with MSD’s published specifications, including but not limited to proper air conditioning, humidity control, and electric power supply. The Customer shall perform all routine operating maintenance for the Instruments as provided for and specified in MSD's user guides or other materials provided by MSD. Customer shall not attempt any other repairs, maintenance, modifications or adjustments to the Instruments, or use the Instruments with any unauthorized attachment or device, except as specifically authorized by MSD. If, in the opinion of MSD, any such unauthorized repair, maintenance, modification, adjustment, attachment or device adversely affects MSD’s ability to render the services and such cause or event is not removed or remedied at Customer’s sole cost and expense, MSD may terminate this agreement. If the Instrument is located in a laboratory with a biosafety level greater than BSL-1, then, upon MSD’s request and in accordance with its instructions, Customer agrees to decontaminate the Instrument of hazardous materials including, without limitation, infectious agents. Upon request, Customer will provide written certification in a form acceptable to MSD that an Instrument has been properly decontaminated. If, in the opinion of the Technical Service Representative, the applicable Instrument may be contaminated, the Technical Service Representative may refuse to provide services with respect to such Instrument without liability to MSD. Without MSD’s prior written consent, Customer shall not move an Instrument. MSD reserves the right to increase service charges or terminate this agreement, at its option, at any time upon relocation of the Instruments to a different Customer Location. Customer shall only use the documentation or information it obtains in connection with the performance of any services or this agreement to operate the Instrument in accordance with its accompanying terms and conditions.

9. EXCLUSIONS. Except as otherwise specifically agreed to in writing by MSD, services provided hereunder will not include: (a) electrical work external to the Instruments; (b) repair or maintenance of accessories, supplies, attachments or other devices not furnished by MSD; (c) plates, assays or reagents (collectively, “Consumables”) required to perform the services or otherwise; (d) upgrades to the Instruments that add additional functionality and/or capabilities; (e) services arising or resulting from repairs, modifications, maintenance or adjustments to the Instruments that were not authorized by MSD; (f) services for damage to or destruction of the Instruments where such damage or destruction is a result of, or caused by (i) fire or explosion of any origin, failures of site electrical power, air conditioning, sprinkler system or humidity control, theft, or water damage; (ii) riot, civil commotion, war, or any act of God, including but not limited to lightning, hail, flood, earthquake, (iii) Customer’s alteration, storage, use, maintenance or installation of the Instruments in a manner not conforming to written instructions and specifications provided by MSD, (iii) parts, supply items, and/or accessories not manufactured or sold by MSD, or (iv) a Prohibited Use, Prohibited Action, or Prohibited Transfer; (g) services arising or resulting from moving or reinstalling an Instrument for which prior authorization was not received from MSD; (h) interpretation of data; (i) installation of unauthorized modifications; (j) repair of damage to the Instruments resulting from accident, Customer negligence or misuse; (k) Customer-requested specification changes; (l) routine cleaning; (m) operating supplies other than replacement parts; (n) inspection costs or other expenses incurred in operating and effectively improving standards of the Instruments that have not been under a continuous maintenance and support agreement with MSD; (o) any problems or defects in an Instrument caused by Customer; (p) failure of Customer to follow the recommended maintenance schedule set forth in MSD's user guides and materials; (q) provision or installation of software upgrades (other than bug fixes or error corrections) unless included in the applicable Total Service Package; or (r) assay services.

10. PRICE AND PAYMENT.

10.1. Payment. Payment in full is due and payable thirty (30) days after the date set forth on the invoice provided by MSD to Customer (“Invoice Date”). Quoted prices for services are exclusive of all foreign, federal, state, municipal and other governmental sales, use and excise taxes, transaction and value added taxes, fees and assessments and other like taxes or duties, which are due and payable to MSD on demand. All invoices shall be payable in United States currency. MSD reserves the right to assess a service charge not exceeding the lesser of 1.5% per month (or portion thereof) or the maximum amount permitted by applicable law on invoiced amounts not paid within thirty (30) days of Invoice Date, with interest to accrue monthly until full payment is received.

10.2. Remedies. If Customer defaults on its payment

obligations set forth herein, MSD may suspend any services provided hereunder and may at any time and in its sole discretion, limit or cancel the credit of Customer as to time and amount, and as a consequence, may require payment in cash before delivery of any unperformed services, and may demand assurance of Customer’s due performance. If MSD retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including attorney’s fees, shall be payable by Customer.

Customer hereby represents to MSD that Customer is now solvent and agrees that each acceptance of performance of the services sold hereunder shall constitute reaffirmation of this representation at such time. Under no circumstances shall Customer have the right to offset payments due Customer from MSD under this or any other agreement against payments due MSD under this agreement.

11. COMPLIANCE WITH LAWS. Customer shall comply with any and all applicable foreign, federal, state or local laws, regulations and ordinances, including but not limited to safety regulations.

12. LIMITED WARRANTY; WARRANTY DISCLAIMER.

12.1 Limited Warranty. MSD warrants that it will perform

the services in a good and workmanlike manner. MSD's sole and exclusive obligation and Customer's sole and exclusive remedy for a breach of the foregoing warranty shall be for MSD to reperform the services that are not in compliance with such warranty brought to its attention within thirty (30) days after performance of such services. For the purposes of this Section, services shall not include replacement parts.

12.2 Warranty Disclaimer. THE WARRANTY SET FORTH

IN SECTION 12.1 IS MSD'S ONLY WARRANTY

CONCERNING THE SERVICES. MSD HEREBY DISCLAIMS,

AND CUSTOMER WAIVES, ANY AND ALL OTHER

REPRESENTATIONS, WARRANTIES AND CONDITIONS,

WHETHER STATUTORY, EXPRESS, IMPLIED OR

OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY

IMPLIED REPRESENTATIONS, WARRANTIES AND

CONDITIONS OF MERCHANTABILITY, FITNESS FOR A

PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET

ENJOYMENT, SYSTEM INTEGRATION AND DATA

ACCURACY.

13. LIMITATION OF LIABILITY. MSD’S LIABILITY FOR

DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNT

PAID FOR THE SERVICES DURING THE LESSER OF THE

TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON

WHICH THE CLAIM AROSE OR THE TERM SET FORTH IN

THE ATTACHED QUOTATION. IN NO EVENT SHALL MSD

BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE

SERVICES OR PARTS OR FOR ANY INDIRECT,

SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL

DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH

OF AGREEMENT, NEGLIGENCE, STRICT LIABILITY,

FUNDAMENTAL BREACH, OR UNDER ANY OTHER

LEGAL THEORY, OR OTHERWISE, EVEN IF MSD HAS

BEEN ADVISED OF THE POSSIBILITY OF SUCH

DAMAGES. MSD shall not be liable for any claim or demand against Customer by any other party, including without limitation, any claim based on the use or misuse of any of the Instruments by any third party. The parties agree that the above disclaimer of warranty and limitation of liability form an essential basis of the bargain between the parties and MSD has set its prices in part based on such disclaimer and limitation. The disclaimer of warranty and limitation of liability shall be enforceable even if all other remedies fail of their essential purpose.

14. MISCELLANEOUS. If Customer issues a purchase order or any similar document, even if acknowledged by MSD, the terms and conditions of that purchase order or similar document, irrespective of the presence or absence of any similar term or condition in this agreement, shall have no force or effect and the terms and conditions of this agreement shall continue unaltered and unaffected. All notices required to be given under this agreement must be in writing and sent certified mail, return receipt requested, or by nationally recognized overnight courier, and shall be deemed given on the date actually received. This agreement shall not be amended or modified, nor shall any waiver (by action or inaction) of any provision be effective unless in writing signed by both parties. This agreement may not be assigned or transferred (including by operation of law) by Customer, in whole or in part, without the prior written consent of MSD. This agreement shall be governed by and construed in accordance with the laws of the State of Maryland, excluding its conflict of laws provisions. Customer hereby irrevocably consents to venue and jurisdiction in the State of Maryland. If either party is impeded in fulfilling its obligations hereunder by circumstances beyond its reasonable control, including but not limited to, acts of God, fire, war, and delays in deliveries from suppliers, the impediment shall be considered a force majeure event and such party shall be exempted from liability for delays caused by such event. Each of the terms and conditions of this agreement shall be deemed separate and the invalidity or unenforceability of any provision shall not affect any other provision. The failure of either party to enforce any right resulting from a breach of any provision of this agreement by the other party shall not be deemed a waiver of any cumulative or concurrent right relating to any such breach or subsequent breach of such provision or of any other right hereunder.

The parties agree that there are no third party beneficiaries to this agreement. The terms and conditions set forth in Sections 12.2, 13, and 14 shall survive the expiration or termination of this agreement. The quotation and these terms and conditions constitute the entire agreement with respect to the services and shall exclusively govern the parties’ rights and obligations thereto, and Customer has not relied on any representations or statements made by MSD prior to entering into this agreement. For avoidance of doubt, sales and customer and technical support representatives of MSD have no authority to make any representations not included herein, and any such representations should not be relied on by Customer. Section headings contained in this agreement are inserted for convenience of reference only, shall not be deemed to be a part of this agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any provisions hereof. All hardware not included in the Instruments, all tools, or test hardware, and all media, documentation or software used or provided by MSD in the performance of this agreement shall remain the personal property of MSD.

TECHNICAL EXHIBIT 2

DELIVERABLES SCHEDULE