Luminex xPONENT 3.1 Rev 2 - Manual (Page 4)

PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR
OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF
SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS
OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY
DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY
SELLER'S GROSS NEGLIGENCE.
3. Buyer's Use of Product
Buyer shall not use this Product for any commercial purpose, including without limitation
performance of testing services, unless expressly agreed to in writing by Luminex or as
specifically authorized by Luminex through a Luminex distributor. Buyer agrees that no rights
or licenses under Luminex's patents shall be implied from the sale of the Product, except as
expressly provided herein or as specifically agreed to in writing by Luminex, and Buyer does
not receive any right under Luminex's patent rights hereunder. Buyer acknowledges and
agrees that the Product are sold and licensed only for use with Luminex's laser based
fluorescent analytical test instrumentation. Buyer further acknowledges that, unless otherwise
indicated on the Product label, the Product has not received approval from the United States
Food and Drug Administration or other federal, state or local regulatory agencies and have
not been tested by Seller or Luminex for safety or efficacy in food, drug, medical device,
cosmetic, commercial or any other use, unless otherwise stated in Seller's technical
specifications or material data sheets furnished to Buyer. Buyer expressly represents and
warrants to Seller that Buyer will use the Product in accordance with the Product label, if
applicable, and will properly test and use any Product in accordance with the practices of a
reasonable person who is an expert in the field and in strict compliance with the United
States Food and Drug Administration and all applicable domestic and international laws and
regulations, now and hereinafter enacted.
BUYER HEREBY GRANTS TO LUMINEX A NONEXCLUSIVE, WORLDWIDE,
UNRESTRICTED, ROYALTY-FREE, FULLY PAID-UP LICENSE, WITH THE RIGHT TO
GRANT AND AUTHORIZE SUBLICENSES, UNDER ANY AND ALL PATENT RIGHTS IN
INVENTIONS COMPRISING MODIFICATIONS, EXTENSIONS, OR ENHANCEMENTS
MADE BY BUYER TO THE PRODUCT OR TO THE MANUFACTURE OR USE OF THE
PRODUCT (“IMPROVEMENT PATENTS”), TO MAKE, HAVE MADE, USE, IMPORT, OFFER
FOR SALE OR SELL ANY AND ALL PRODUCT; EXPLOIT ANY AND ALL METHODS OR
PROCESSES; AND OTHERWISE EXPLOIT IMPROVEMENT PATENTS FOR ALL
PURPOSES. NOTWITHSTANDING THE FOREGOING, “IMPROVEMENT PATENTS”
SPECIFICALLY EXCLUDES PATENT CLAIMS CONCEIVED AND REDUCED TO
PRACTICE BY BUYER CONSISTING OF METHODS OF SAMPLE PREPARATION,
METHODS OF CONJUGATING PRODUCT TO ANALYTES, THE COMPOSITION OF
MATTER OF THE SPECIFIC CHEMISTRIES OF THE ASSAYS DEVELOPED BY BUYER
AND METHODS OF PERFORMING THE ASSAYS (I.E., THE PROTOCOL FOR THE
ASSAY).
Buyer has the responsibility and hereby expressly assumes the risk to verify the hazards and
to conduct any further research necessary to learn the hazards involved in using the Product.
Buyer also has the duty to warn Buyer's customers, employees, agents, assigns, officers,
successors and any auxiliary or third party personnel (such as freight handlers, etc.) of any
and all risks involved in using or handling the Product. Buyer agrees to comply with
instructions, if any, furnished by Seller or Luminex relating to the use of the Product and not
misuse the Product in any manner. Buyer shall not reverse engineer, decompile, disassemble
or modify the Product. Buyer acknowledges that Luminex retains ownership of all patents,
trademarks, trade secrets and other proprietary rights relating to or residing in the Product
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