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1)  General

This Confirmation establishes the terms and conditions (“Terms”) for sale and license to the purchaser (“Buyer”) of the reagents, cartridges, instruments, software and other products and related services (“Products”) from Cofactor Genomics, Inc. (“Seller”). Reference to any proposal from Buyer is made only to specify basic information concerning price, the description of goods, quantities, terms of payment and delivery, and the like, and provided only if such terms are consistent with the Terms. If this Confirmation is an offer or a quote, Buyer’s acceptance shall be subject to, and conditioned upon the Terms, and Seller hereby objects to those portions of any acceptance that contradict, modify or add to the Terms. If this Confirmation is issued as a confirming order, the Terms shall supersede those terms applying to all prior orders. Any of Buyer’s terms (including in a purchase order) which are added to or are inconsistent with the Terms will be considered proposals for addition or modification to this Confirmation, and will not be added to the Terms or binding on Seller unless agreed to in writing by Seller. The Terms constitute the complete and exclusive agreement of the parties concerning the subject matter of this Confirmation.

2)  Invoices and Payment

All prices are in U. S. dollars and are exclusive of insurance, freight, taxes, fees, duties, and levies which shall be payable by Buyer. “Taxes” shall include any and all sales, use, excise,  value-added or similar tax or duty, and any other tax not based on Seller’s net income, including any penalties and interest, due to the sale of Products or any payment to be made by Buyer pursuant to this Confirmation, and any costs associated with the collection of or withholding of any of the foregoing items. Buyer shall pay the total amount due as specified on the front of this Confirmation, by cash, or by the delivery of an executed letter of credit, if agreed to by Seller in writing within thirty (30) days of delivery. Further shipment of Products may be declined if Buyer fails to make any payment when due, or if the financial condition of Buyer becomes unsatisfactory to Seller. Buyer shall pay interest at a rate equal to 1.5% per month for late payments.

3)  Changes

Buyer may not make changes to this Confirmation without Seller’s written consent. If any such change affects the cost of or the time required for Seller’s performance under this Confirmation, or affects any other provision of this Confirmation, an equitable adjustment agreed to by Seller shall be made in the price and/or delivery schedule of this Confirmation or in such other provisions of the Confirmation as may be affected.

4)  Shipment and Delivery

Products will be packed in Seller’s standard shipping packages and shipped via a carrier selected or approved by Seller. Delivery dates set forth on a purchase order accepted by Seller are subject to change and are dependent on conditions existing at that time. Seller does not guarantee any delivery dates and shall not be responsible for any loss or damage of any kind or nature whatsoever caused by any delay in delivery irrespective of the cause of such delay. If shipment is delayed at Buyer’s request, Buyer will reimburse Seller for all costs of storage. Products delivered will be deemed accepted by the Buyer unless written notice of defect or shortage is received by Seller within 72 hours after receipt of such shipment. Title (except for software, in which case Cofactor Genomics, Inc. shall retain title) and Risk of loss or damage shall pass to Buyer upon delivery of the Products to the carrier. 

5)  Intellectual Property

Any materials, instructions, protocols, know-how, other intellectual property, and designs covering or relating to Products and provided by Seller to Buyer as part of the Products pursuant to this Confirmation (the “Components”) shall remain the sole property of Seller. Buyer may only use such Components as expressly permitted by the Seller in the Product package insert. Buyer shall not reverse engineer any Component or otherwise make any attempt to determine the composition of the Components.

Research Use Only; Limited License.

Products supplied by Seller are labeled for research use only and do not have the approval of the U.S. Food and Drug Administration (“FDA”) or any other regulatory approval, clearance or registration for in vitro diagnostic use (“IVD”) use. In particular, the purchase of this product under these terms does not include or carry any right or license to use, develop, or otherwise exploit this product commercially and no rights are conveyed to the buyer to use the product or components of the product for therapeutic or diagnostic purposes, including as part of a laboratory-developed test (LDT). All Products shall be used by qualified professionals in accordance with any user guide, protocols, or other documentation provided by Seller in connection with the Products. The user guides, protocols, or other documentation provided by Seller in connection with specific Products may include other license terms, and Buyer agrees that such terms are incorporated herein by reference. The burden for safe use and handling of all Products sold by Seller to Buyer is entirely the responsibility of Buyer. Subject to the Terms, Seller hereby grants to Buyer a non-exclusive, non-transferable, non-sub-licensable license to use the Products for research use only, and only in accordance with the manuals and written instructions provided herewith by Seller for Buyer’s internal research and development activities (and educational activities if Buyer is a not-for-profit institution). No right or license to any intellectual property owned or licensable by Seller is conveyed or implied by this Confirmation, except as expressly set forth above. In particular, no right or license is conveyed or implied to use any Product provided hereunder in combination with a product not provided, licensed, or specifically recommended by Seller for such use. Buyer shall not transfer, resell or distribute Products to any third party.

Use Restrictions.

Buyer is not licensed to, and agrees not to: (a) resell any Seller-supplied Products, (b) transfer, or distribute any Seller-supplied Products, directly or indirectly, to any third party for any purpose or use, except as otherwise approved by Seller in writing; (c)  dilute any Seller-supplied reagent other than in accordance with Seller’s instructions for use; (d) decompile, deconstruct, disassemble or make other attempts to reverse engineer Seller supplied Products including software or kits; or e) use the product or components of the product for therapeutic or diagnostic purposes, including as part of a laboratory-developed test (LDT). Buyer acknowledges that failure to comply with any restriction of use set forth herein or in any user guide, protocols, or other documentation provided by Seller in connection with the Products will (i) constitute a breach of these Terms and Conditions, (ii) invalidate any warranty provided herein and any applicable service agreement, and (iii) constitute a violation or infringement of Seller’s and/or a third party’s intellectual property rights.

Product Improvement Inventions.

Buyer hereby grants to Seller a non-exclusive, worldwide, fully paid-up, royalty-free, irrevocable, perpetual license, with the right to grant and authorize sublicenses, to use and disclose (solely on a de-identified basis) the Sequencing Data for any and all purposes.  For purposes of these Terms and Conditions, “Sequencing Data” shall mean any and all data and related information provided to Seller by or on behalf of Buyer in connection with use of the Products (including any and all intellectual property rights in and to the foregoing).

6)  Cancellation

Seller may cancel this Confirmation, in whole or in part, if Buyer fails to comply with any of the Terms, or if Buyer takes or is subject to any act of bankruptcy or insolvency. Upon such cancellation, Seller shall not be liable for any amount, and Buyer shall be liable to Seller for any and all damages (including but not limited to indirect or consequential damages) sustained by reason of Seller’s default. Buyer may only cancel this Confirmation by providing written notice no later than thirty (30) days prior to the scheduled shipment of the applicable Products. Buyer shall submit request for reschedule of shipment to Seller in writing and such reschedule shall only effective upon Seller’s written consent. Any reschedule for a period of ninety (90) days or more maybe considered by Seller as a cancellation of the affected order of Products. Buyer shall hold Seller harmless for all costs incurred and any consequential damages Seller may incur as a result of any reschedule or cancellation of this Confirmation. Seller shall use reasonable efforts to minimize the liability of Buyer under this paragraph.

7)  Custom Products

Certain Products sold by Seller are manufactured to certain criteria specifically for a Buyer or are combination products which include customization of standard products as specified by a Buyer (“Custom Products”). These Products may not meet specifications of Seller’s standard or off the shelf Products. A Buyer may elect to purchase Custom Products by providing Seller with the information pertaining to its specific needs. Seller shall provide the Buyer with a Quote based on the information provided by Buyer. Any change to the Buyer information must be made within twenty four (24) hours after confirmation and Quote is received by the Buyer. Failure to do so may result in additional costs to the Buyer. Seller will not disclose to any third party any proprietary information that Buyer may have provided to Seller, or any confidential information of Buyer. Notwithstanding the foregoing, Seller may market and make available for commercial sale to its other customers through its normal distribution channels the Custom Products including those based on information that is the same or similar to that provided by any given Buyer, provided that such information is independently provided by a subsequent or another Buyer. No additional warranties other than those described below shall be available for Custom Products. Buyer acknowledges and accepts sole responsibility for providing accurate information to Seller and Seller shall have no liability for Product defects caused or related in whole or in part to Buyer’s negligence in providing accurate information to Seller.

8)  LIMITATION OF LIABILITY

SELLER SHALL HAVE NO LIABILITY TO BUYER FOR ANY INDIRECT ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AS TO ANY SELLER’S LIABILITY NOT LEGALLY SUBJECT TO THE FOREGOING, IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER EXCEED THE AMOUNT PAID BY BUYER TO SELLER FOR THE APPLICABLE PRODUCT. BUYER UNDERSTANDS THAT SUCH ALLOCATION OF RISK IS REFLECTED IN THE PRICE OF THE PRODUCTS AND THAT THE TERMS WOULD HAVE BEEN DIFFERENT IF THERE WAS A DIFFERENT ALLOCATION OF RISK

9)  Compliance with Laws; Indemnification

Buyer shall comply with all applicable federal, state or local laws, rules, regulations or ordinances (“Laws”) in performing under this Confirmation and in storage and use of Products. Seller agrees to indemnify Buyer from and against any final judgment or settlement amounts as a result of 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 use of a Product in a manner expressly authorized by any applicable label or other written license furnished by or otherwise in writing by Seller infringes any United States, European, or Japanese patents of such third party. If any Product or any component thereof is subject to a legal proceeding claiming that the Product infringes a third party’s intellectual property right, or in Seller’s opinion is (are) likely to become subject of such a claim, Seller may, at its option either: (a) procure for Buyer the right to continue using the Product; or (b) replace or 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 or obsolescence; or (d) substitute for the infringing Product with suitable, non-infringing products. Notwithstanding the foregoing, Seller shall have no liability or obligation hereunder for any claim arising out of: (i) the use of Product in combination with any product, equipment or material not provided by Seller, (ii) any modification to Product made by Buyer or a third party, or (iii) any modification to Product made by Seller at the request of the Buyer. THE FOREGOING STATES THE ENTIRE LIABILITY OF SELLER, AND THE EXCLUSIVE REMEDY OF BUYER, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHT BY PRODUCT OR ANY PART THEREOF OR USE THEREOF. Buyer shall indemnify Seller against all losses, damages, liabilities, judgments, costs and expenses (including attorney’s fees) due to any suit, claim, action or proceeding against Seller resulting from Buyer’s non-compliance with Laws, or any infringement of intellectual property right resulting from use of Product or combining Product with other components or products.

10)  Assignment

Buyer shall not assign or delegate any obligation under this Confirmation. Any attempted assignment or delegation shall be void.

11)  Limited Warranty.

Reagents reasonably determined by Seller to be defective, independent of user error, shall be replaced by Seller on a 1:1, like-kind basis at no cost to Buyer or at Seller’s sole discretion, the amount paid by Buyer shall be credited to the Buyer against future Products purchased from Seller, provided that such defective reagents were used by Buyer prior to their expiration date, or if there is no expiration date, the Products were used within twelve (12) months of receipt, and the defect was promptly reported with appropriate detail to Seller’s technical support. For Custom Products (see section 7 above), Buyer bears all responsibility for the performance of the Custom Products when used in combination with any other Products.

All warranties specified herein apply only to Buyer, and not third parties.

12)  Force Majeure

Seller shall not be liable for any delay of delivery or other performance under this Confirmation if performance is rendered impracticable by the occurrence of any condition beyond its reasonable control. Events beyond Seller’s reasonable control shall include (without limitation) government action or inaction, strikes, fire, flood, earthquake, severe weather or other casualty, or the like. In the event of any such delay or failure in performance, Seller shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances and Seller shall have the right, to the extent necessary in its sole judgment, to apportion available Products fairly among its various customers.

13)  Non-Waiver; Modifications

A waiver on one or more occasions of any of the provisions by either party shall not be deemed a waiver of the right to enforce such or any other provision at a later time. Any modification to this Confirmation may be made only by the written agreement of both Seller and Buyer.

14)  Export Controls

Buyer agrees that it will not directly or indirectly export Products in violation of any United States export laws or regulations.

15)  Miscellaneous Provisions

This Confirmation constitutes the entire agreement between Buyer and Seller and is the final, complete, and exclusive statement of the terms of the agreement, superseding all prior oral and written agreements (other than any formal supply agreements between Buyer and Seller), understanding, and undertaking with respect to the subject matter hereof. This Confirmation will be interpreted in accordance with the laws of the State of New York without giving regards to conflict of law principles requiring the application of other laws, and in no event by the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby consent to personal jurisdiction in the state and federal courts in New York in any suit arising out of this Confirmation. The invalidity in whole or in part of any provision hereof shall not affect the validity of any other provision.

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