Definitions: "Agreement" means the applicable Quote (if
any), these Element Biosciences Terms and Conditions of Sale and any
applicable Supplementary Terms. "Buyer" means the person or entity
purchasing the Products from Seller. "Products" means all articles,
materials, products, work, or services to be furnished pursuant to a
Purchase Order. "Purchase Order" means a purchase order provided by Buyer
to Seller for the purchase of Products from Seller. "Quote" means the quote
provided by Seller for the purchase of Products from Seller. "Seller" means
Element Biosciences, Inc. and its affiliates. "Specifications" means
Seller's specifications attached to or specified in Quote, Seller's
website, or Seller's product documentation. "Supplemental Terms" means
additional software licenses, limited use label licenses or other
additional terms that apply to the Products and that are listed on Quote,
Seller's website, Product label, or in the documentation that accompanies
the Product.
Acceptance: This Agreement is an offer to sell and when
a Purchase Order is accepted by Seller becomes the exclusive agreement
between the parties relating to Products. In the event of a conflict with
the documents constituting this Agreement, said documents will be given the
following order of precedence: (i) the applicable Quote; (ii) any
applicable Supplemental Terms; and (iii) these Element Biosciences Terms
and Conditions of Sale. Any Buyer terms of purchase and/or terms or
conditions in Buyer's Purchase Order and/or other similar documents that
are inconsistent with, in addition to, or that alter in any way the
provisions of this Agreement are hereby expressly rejected and will not
apply to any Products. Following Seller's acceptance of a Purchase Order,
Seller will notify Buyer indicating the estimated lead time for manufacture
and delivery of the requested Products, which may be made in installments.
Please note Products are not offered or available for purchase or
supply outside of the United States.
Cancellation: Purchase Orders cannot be canceled or
changed following acceptance by Seller without Seller's written consent.
Seller will use commercially reasonable efforts to accommodate Buyer's
reasonable requests to amend its Purchase Order to increase the number of
Products.
Price: The purchase price for Products is the price
listed on the applicable valid Quote. Prices listed on any Quote are valid
for 30 days, unless otherwise agreed to in writing by Seller. If there is
no valid Quote or price listed on the applicable Quote, then the price will
be Seller's standard retail list price for said Products at the time Seller
accepts Buyer's Purchase Order. All Product prices are exclusive of all
shipping and handling charges and any sales, value added, or other taxes
and duties imposed with respect to the sale, delivery, or use of any
Products and such items, if applicable, will be added to the invoice. If
Buyer claims any tax exemption, Buyer must provide Seller with a valid,
signed certificate or letter of exemption for each respective jurisdiction.
Invoice and Payment: Seller will provide Buyer with
invoices upon shipment of Products and said invoice will contain the
description of Products, quantities, shipping costs, and total price.
Seller, in its discretion, may make partial shipments of Products and
invoice each shipment separately. Invoiced amounts are payable in the
currency and to the address specified in Seller's invoice. Buyer will pay
said invoice within 30 days of Buyer's receipt of said invoice, unless
Seller has agreed otherwise in writing. Each Purchase Order is a separate
transaction and Buyer may not off-set payments from other Purchase Orders
or other transactions with Seller. Any amount not paid when due will accrue
interest until paid at the rate of 1.5% per month or the maximum amount
allowed by law, whichever is less, and Buyer will be responsible for any
reasonable costs of collection (including collection agency fees and
attorneys' fees) incurred by Seller. Where invoices for Products are not
timely paid, subsequent shipments may be canceled or delayed or subject to
prepayment until overdue amounts are paid.
Shipping: Seller will package the Products in
containers designed to protect the Products from damage in the ordinary
course of delivery. Shipment will be made (a) DAP (Incoterms 2020) where
shipment is made by Seller's carrier with title and risk of loss or damage
to the Products transferred to Buyer upon delivery of Products to Buyer's
address, and (b) FCA (Incoterms 2020) at Seller's shipping point where
Seller agrees, in its sole discretion, to use Buyer's carrier with title
and risk of loss or damage to the Products transferred to Buyer as soon as
the Products are shipped (i.e., delivered into the custody of the carrier);
provided, however, that Seller or its licensors will retain ownership and
title to any software contained or incorporated in the Products. Any
shipment of Products may be postponed or terminated, as required by law.
Inspection: Buyer will have five (5) days from receipt
of each delivery of Products to inspect said Products and notify Buyer of
any shortfall or visible defects in Product packaging. If Buyer does not
provide any said notice within said timeframe, then Buyer is deemed to have
accepted the Products. For purposes of clarification, Buyer's acceptance of
Products does not negate any Product warranties provided by Seller.
Limited Warranty for Consumables: Seller warrants that
Products that are consumables will conform to the applicable Specifications
for a period of the later of three (3) months from date of shipment or the
expiration date on the Product, but in no event to exceed twelve (12)
months from the date of shipment. For the avoidance of doubt, shelf-life or
use-by information printed on the Products or product literature is
provided for informational purposes only and is not deemed a period of
warranty.
Limited Warranty for Instruments and Spare Parts:
Seller warrants that Products that are instruments will conform to the
applicable Specifications for a period of twelve (12) months from
installation; provided, however, that in no event will the foregoing
warranty exceed thirteen (13) months from the date of shipment
("Manufacturer Warranty"). If Buyer purchases an extended warranty from
Seller prior to the expiration of the Manufacturer Warranty, then the
Manufacturer Warranty will be extended for a period of twelve (12) months
from the expiration of the Manufacturer Warranty. Seller warrants that
Products that are spare instrument parts will meet the applicable
Specifications for a period of three months or until the end of the
warranty period of the applicable instrument in which it is installed,
whichever is longer.
Warranty Exclusions and Limitations: Seller's
warranties do not apply to the extent any Product failure to meet
Specifications is the result of (i) abuse, negligence, or improper use,
storage, or handling; (ii) accident, power failure, electrical power surge,
or force majeure event; (iii) installation, removal, maintenance,
alterations, disassembly, or repair by Buyer or a third party other than
Seller; and/or (iv) use with any third party product. All warranties
provided are personal to Buyer and may not be transferred to assigned to a
third party, including Buyer's affiliate. EXCEPT AS SET FORTH IN THESE
TERMS AND CONDITIONS OF SALE, SELLER MAKES NO, AND HEREBY DISCLAIMS ANY AND
ALL, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PRODUCTS OR OTHER SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT.
Warranty Remedies:If a Product fails
to meet the applicable warranty, Seller will, at Seller's election, repair
or replace said Product with new or reconditioned Products or components,
at Seller's discretion and expense; provided, that Buyer has first provided
written notice to Seller with details of said failure and Seller is
reasonably able to confirm said failure. The warranty period for any
repaired or replaced Product will be the original Product warranty. Any
warranty claim must be submitted by Buyer prior to the expiration of the
applicable warranty period. At Seller's request and expense, Buyer will
ship back the non-conforming Products and/or parts. The remedies set forth
in this Section 11 and Seller's indemnification obligations under Section
13 are the sole remedies for any breach by Seller of a representation or
warranty under this Agreement.
Intellectual Property and Product Use: Seller retains
ownership of all intellectual property rights contained in and relating to
the Products. Upon transfer and payment of Products purchased under this
Agreement, Seller hereby grants Buyer a limited, non-exclusive,
non-transferrable right under Seller's intellectual property to use the
Products, including software contained in any Products, for research
purposes only and not for any other purpose, including without limitation
manufacturing, production quality control, non-research commercial
services, laboratory developed tests, diagnostics, or therapeutics. Except
for the license granted in this Section 12, nothing in this Agreement will
be construed as conferring explicitly or by implication, estoppel or
otherwise any license, right or immunity under any Seller intellectual
property rights. Buyer will use Products in accordance with the terms and
conditions of this Agreement, any product documentation provided by Seller,
and all applicable laws and regulations. Buyer will not transfer, resell,
reverse engineer, decompile, disassemble, or distribute the Products or any
of their components. Buyer is solely responsible for obtaining any third
party intellectual property rights necessary for Buyer's use of the
Products.
Indemnification: Seller
will defend, indemnify, and hold harmless Buyer, its officers, employees,
agents, and representatives, from and against any and all losses,
liabilities, costs, damages, claims, fines, penalties and expenses
(including, without limitation, costs of defense or settlement and
reasonable attorneys', consultants', and experts' fees) resulting from any
claims, demands, actions or other proceedings ("Claims") made or instituted
by a third party to the extent arising out of or resulting from (i) any
actual or alleged infringement or misappropriation of a third party
intellectual property right in Seller's manufacture and sale of the
Products; (ii) Seller's breach of any representation, warranty, or
obligations under this Agreement; and/or (iii) Seller's gross negligence or
willful misconduct. Buyer will defend, indemnify, and hold harmless Seller,
its officers, employees, agents, and representatives, from and against any
and all losses, liabilities, costs, damages, claims, fines, penalties and
expenses (including, without limitation, costs of defense or settlement and
reasonable attorneys', consultants', and experts' fees) resulting from any
Claims made or instituted by a third party to the extent arising out of or
resulting from (i) any actual or alleged infringement or misappropriation
of a third party intellectual property right in Buyer's use of the
Products; (ii) Buyer's breach of any representation, warranty, or
obligation under this Agreement; and/or (iii) Buyer's gross negligence or
willful misconduct. This provision will survive expiration or termination
of this Agreement.
Limitation of Liability: EXCEPT AS PURSUANT TO AN
EXPRESS INDEMNITY OBLIGATION IN SECTION 13, IN NO EVENT WILL EITHER PARTY
AND ITS AFFILIATES BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS
OF GOODWILL, LOSS OF DATA OR LOSS OF USE DAMAGES) THAT THE OTHER PARTY
MIGHT INCUR OT THAT MAY ARISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF
SAID AND/OR ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SAID
DAMAGES OR LOSSES. EXCEPT AS PURSUANT TO AN EXPRESS INDEMNITY OBLIGATION IN
SECTION 13, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
WILL THE TOTAL LIABILITY OF EITHER PARTY AND ITS AFFILIATES ARISING OUT OF
OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY BUYER TO
SELLER FOR THE PRODUCTS PURCHASED UNDER THE APPLICABLE PURCHASE ORDER.
Compliance with Law: Buyer acknowledges that Products
provided under this Agreement may be subject to U.S. and applicable foreign
export laws and regulations. Specifically, Buyer agrees that it will not
export, re-export, distribute, transfer, release or use the Products in
violation of U.S. export laws or regulations or the import laws and
regulations of applicable foreign states.
Assignment: This Agreement may not be assigned by
either party without the prior written consent of the other party.
Notwithstanding the foregoing, either party may assign, without consent,
its rights and obligations hereunder to any successor to all or
substantially all of its business that concerns this Agreement (whether by
sale of stock or assets, merger, consolidation or otherwise); provided,
however, that the assigning party provides written notice of said
assignment to the other party and said successor agrees in writing to be
bound by the terms of this Agreement. Any attempted assignment contrary to
this Agreement is null and void. This Agreement will be binding upon and
inure to the benefit of the successors, representatives, and permitted
assigns of the parties.
Governing Law: This Agreement and performance of the
parties hereunder will be governed by and interpreted in accordance with
the laws of the United States and the State of Delaware, without reference
to choice of law provisions. The parties agree that any application of the
United Nations Convention on Contracts for the International Sale of Goods
is specifically excluded and will NOT apply to this Agreement. Any dispute,
controversy or claim arising out of or relating to this Agreement or to a
breach hereof, including without limitation its interpretation, performance
or termination, and the determination of the scope or applicability of this
agreement to arbitrate, will be finally resolved by arbitration in San
Diego, California before one arbitrator. The arbitration will be
administered by JAMS pursuant to its Comprehensive Arbitration Rules and
Procedures and in accordance with the Expedited Procedures in those Rules,
unless the claim is for less than $100,000, in which case the arbitration
will be pursuant to JAMS' Streamlined Arbitration Rules and Procedures. The
parties will keep confidential: (i) the fact that any arbitration occurred;
(ii) any awards awarded in the arbitration; (iii) all materials used, or
created for use in the arbitration; and (iv) all other documents produced
in the arbitration and not otherwise in the public domain, except, with
respect to each of the foregoing, to the extent that disclosure may be
legally required (including to protect or pursue a legal right) or
necessary to enforce or challenge an arbitration award before a court or
other judicial authority. The arbitrator(s) will award to the prevailing
party, if any, its costs and expenses, including its attorneys' fees. The
prevailing party will also be entitled to its attorneys' fees and costs in
any action to confirm and/or enforce any arbitration award in any judicial
proceedings. Judgment on the award may be entered in any court having
jurisdiction. Nothing in the Agreement shall prevent either party from
seeking provisional relief, and any such request shall not be deemed
incompatible with the agreement to arbitrate or a waiver of the right to
arbitrate. The parties agree that the exclusive jurisdiction for such
relief will be the state or federal courts located in San Diego,
California.
Notices: Any and all notices, requests, demands, or
other communications that relate to the other party's failure to perform or
which otherwise affect either party's rights under this Agreement will be
deemed properly given when furnished by receipted hand-delivery to the
other party, deposited with an express courier, or deposited with the
postal service (postage prepaid, certified mail, return receipt requested).
Except in situations involving hand-delivery, the sender will address all
notices, requests, demands or other communications to the address located
on the Purchase Order and/or Quote, as applicable.
Publicity: Except as required by law or deemed
necessary under applicable federal or state securities laws or regulations,
Buyer will not use the name of Seller, nor the name of any member of
Seller's staff, in connection with any publicity without the prior written
approval of Seller.
Force Majeure: Except for payment obligations, each
party will be relieved of its obligations under this Agreement to the
extent that fulfillment of said obligations is prevented by acts of war,
labor difficulties, riots, fire, flood, hurricane, windstorm, acts or
defaults of common carrier, governmental laws, acts or regulations
(including the inability to obtain any necessary permits), pandemics,
epidemics, shortages of materials or any other occurrences, whether or not
similar to the foregoing, beyond the reasonable control of the affected
party; provided, however, that said relief will only continue for so long
as the force majeure condition exists.
General: This Agreement is the final, complete, and
exclusive statement of the understanding between the Seller and Buyer with
respect to the subject matter hereof. No terms, conditions, usages of
trade, courses of dealing or agreements purporting to modify, vary,
explain, or supplement this Agreement will be binding. This Agreement may
not be waived, amended, or otherwise modified except by a writing signed by
both Seller and Buyer. If any provision of this Agreement is held invalid
or unenforceable, such provision will be enforced to the maximum extent
permissible so as to give effect to the intent of the parties, and the
remainder of this Agreement will continue in full force and effect. The
relationship of the parties is that of independent contractors, and nothing
herein will be construed as establishing one party or any of its employees
as the agent, legal representative, joint venturer, partner, employee, or
servant of the other. There are no third party beneficiaries to this
Agreement. No remedy herein provided will be deemed exclusive of any other
remedy allowed by law or in equity. All rights and obligations of the
parties set forth herein that expressly or by their nature survive the
expiration or termination of this Agreement will continue in full force and
effect subsequent to and notwithstanding the expiration or termination of
this Agreement until they are satisfied or by their nature expire and will
bind the parties and their legal representatives, successors, and permitted
assigns.