1. Purchase Order. By issuing a purchase order, Customer acknowledges acceptance of the terms and conditions set forth herein, and understands that it is entering into a legally binding agreement with respect to such terms and conditions (“Agreement”).
2. Pricing and Payment Terms/UCC. a) All products ordered shall be billed to Customer at the prices set forth in Agena Bioscience (“Agena”) standard catalog price list, unless otherwise set forth in a written proposal or Quotation provided by Agena. All payments shall be due within thirty (30) days from the date of shipment and invoice by Agena. All payments shall be made in United States dollars. Customer shall be responsible for payment of interest accruing monthly at a rate of twelve percent (12%) APR for all late payments. B) Customer hereby grants Agena a security interest in the System and Agena shall retain a security interest in the System until Customer has made all payments to Agena required by the Quote accompanying these Terms and Conditions. Customer agrees to cooperate with Agena in perfecting and maintaining Agena’s security interest, including the preparation, signing, and filing of UCC financing statements. Customer agrees that Agena is authorized, at its option, to file financing statements or amendments thereto without the signature of Customer with respect to the System and if a signature is required by law, Customer does hereby make, constitute and appoint Agena as Customer’s true and lawful attorney-in-fact for the purpose of executing and filing, in the name of Customer, a UCC-1 or other financing statement or amendment in favor of Agena covering the System.
3. Shipping. Unless Customer’s purchase order specifies alternative shipping instructions that are acceptable to Agena, all products shall be shipped FCA (Seller’s premise) Incoterms® 2010. Title to products shall pass to Customer upon shipment. Customer shall be invoiced and shall pay Agena for all actual freight, handling, insurance, taxes and shipping expenses. Customer shall not import or export Agena products to Customer subsidiaries, affiliates, contractual partners, or countries embargoed or restricted under United States law.
4. Taxes. Customer will pay any and all taxes (other than taxes based upon Agena’s income), sales taxes, assessments and other charges and expenses imposed by any government authority in connection with the delivery and sale of Agena products to Customer.
5. Warranty. Standard Agena warranties shall apply as set forth in the Agena MassARRAY® System Warranty documentation provided with each System. EXCEPT AS SET FORTH IN THIS SECTION 5, AGENA MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTEES, OR CLAIMS, OF ANY KIND OR NATURE, AS TO THE ACCURACY OF, RELIABILITY, UTILITY, PERFORMANCE, EFFECTIVENESS, OR OTHERWISE, OF THE SYSTEM PROVIDED HEREIN OR THE RESULTS OBTAINED THEREFROM, NOR DOES AGENA ASSUME ANY RESPONSIBILITY FOR THE RESULTS, QUALITY OF RESULTS, OR LACK OF RESULTS THE SYSTEM AND REAGENTS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WRITTEN OR ORAL, EXPRESS OR IMPLIED, DIRECT, INDIRECT, BY ESTOPPEL, OR OTHERWISE, AND SPECIFICALLY EXCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY THIRD PARTY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND ANY OTHER WARRANTIES PROVIDED FOR BY THE UNIFORM COMMERCIAL CODE, USAGE IN THE INDUSTRY, OR COURSE OF DEALING BETWEEN THE PARTIES.
6. License. Agena’s patented nucleic acid analysis by mass spectrometry methods and products are protected under United States patent rights and patents pending, and foreign counterparts. With the purchase of Agena SpectroCHIP® arrays and reagent kit products Customer is granted a limited right to practice Agena’s patented methods and use its products. The licensed rights are not transferable, are for the benefit of Customer only, and expire with the consumption of the SpectroCHIP arrays purchased. Transfer or resale of products and their components, purchased from Agena, is prohibited. The license rights granted are limited to one-time use only for each element per SpectroCHIP array purchased. For example, Agena’s SpectroCHIP 384 Array is provided with 384 elements and each element may be used only once. Re-manufacture or re-use of Agena’s SpectroCHIP arrays and/or elements in conjunction with performing Agena’s patented nucleic acid analysis methods, is prohibited. Reverse engineering Agena products is prohibited. Except as expressly licensed with the purchase of chips and reagent kit products as set forth herein, Agena reserves all rights and no additional license rights are granted or implied.
7. Software License. For purposes of this Agreement, “Software” means computer software or programs supplied by Agena to Customer including but not limited to such software that is embedded in or forms an integral part of Agena’s hardware products in addition to separately provided software for application specific purposes. For purposes of this Agreement, Software does not include Oracle Corporation software products provided by Agena as such Oracle products are separately governed by the attached Oracle End User License Terms.
(a) Agena grants Customer a non-exclusive and non-transferable license to use the Software for processing data exclusively in conjunction with specially designated SpectroCHIP® arrays and reagents or reagent kit products purchased from Agena. Customer shall not permit another party to use the Software and Customer shall effect and maintain adequate security measures to safeguard the Software from access or use by unauthorized persons. Customer shall not transfer, rent, lease, sublicense, loan, copy, modify, adapt, merge, translate, reverse engineer, decompile, or disassemble the Software or create derivative works based on the whole or any part of the Software.
(b) The Software license shall not be deemed to extend to any of Agena’s intellectual property rights, including rights in source code. No copies may be made of the Software without the prior written consent of Agena, except that Customer may make a single back up or archival copy. The Software license shall apply to any copy as it applies to the Software.
(c) With specific reference to application Software and including any associated report tools, Customer is provided a royalty-free, non-exclusive and non-transferable license to use the Software subject to the terms and conditions in subsections (a) and (b) above, solely upon the condition that such Software is used exclusively in conjunction with specially designated SpectroCHIP® arrays and reagents or reagent kit products purchased from Agena.
(d) All Software licenses shall terminate automatically and immediately if Customer fails to abide by any of the terms and conditions of this Agreement. Except as expressly licensed herein, Agena reserves all rights. Other than as expressly set forth herein, no license rights are granted or implied.
8. No Governmental Approval. Customer is hereby put on notice that all of Agena’s products and Software are Research Use Only and have not been subjected to regulatory review or cleared or approved by the United States Food and Drug Administration, or any other United States governmental agency or entity, or by any similar governmental agency outside the United States, and are not CLIA (or the regional equivalent thereof) registered or licensed or otherwise registered, licensed, or approved under any statute, rule, law, or regulation for any purpose. Customer bears sole responsibility and liability for validating all products purchased for Customer’s intended use.
9. Indemnity. a) Customer will indemnify and hold harmless Agena Bioscience, Inc., its subsidiaries, and all officers, directors, employees and agents of the foregoing, (the “Agena Bioscience Indemnified Parties”) from and against any and all losses, damages, liabilities, expenses and costs, including responsible legal expense and attorneys’ fees (“Losses”), to which a Agena Bioscience Indemnified Party may become subject as a result of any claim, demand, action or other proceeding by any third party to the extent such Losses arise from acts or omissions by Customer resulting in (a) personal injury or harm from the use, sale or other disposition of any product or service or information provided to a third party by Customer and/or its contractual partners, customers, or collaborators; or (b) a claim that a Customer product, assay, test analysis, method, or procedure infringes any patent, trade secret or other intellectual property rights of any third party, unless such claim is solely based on Customer’s non-assay-specific use of Agena Bioscience’s products according to the authorized and intended use for such product and in compliance with user operating manuals and package inserts provided with such products. In the event a Agena Bioscience Indemnified Party seeks indemnification under this provision, Agena Bioscience will notify Customer in writing of a claim as soon as reasonably practicable after it receives notice of the claim, will permit Customer to assume direction and control of the defense of the claim (including the right to settle the claim) and will cooperate as requested (at the expense of Customer) in the defense of the claim.
10. Limitation of Liability. IN NO EVENT SHALL AGENA BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR COSTS INCURRED BY CUSTOMER IN CONNECTION WITH THE USE OF THE PRODUCTS BY CUSTOMER OR ANY OTHER PERSON UTILIZING THE PRODUCTS, NOR SHALL AGENA BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS. SUCH LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER SUCH DAMAGES ARE CLAIMED, ASSERTED OR BROUGHT IN AN ACTION OR CLAIM SOUNDING IN TORT OR CONTRACT, OR ON THE WARRANTY, OR UNDER ANY OTHER LAW OR FORM OF ACTION. AGENA’S LIABILITY FOR DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNT RECEIVED BY AGENA FROM CUSTOMER UNDER THIS AGREEMENT.
11. Compliance with Law. Customer shall perform its obligations under this Agreement in compliance with the letter and spirit of all laws, ordinances, rules, regulations and lawful orders of any public authority (including but not limited to the U.S. Foreign Corrupt Practices Act and other applicable anti-bribery laws, bearing on the performance of this Agreement (collectively, “Laws”). Customer shall promptly notify Agena if it becomes aware of any suspected or actual violation of Laws or ethics relating to this Agreement, and will make all relevant records and documentation relating thereto available to Agena or an independent third party selected by Agena and reasonably acceptable to Customer. Customer, its Affiliates and anyone acting on their behalf shall not offer, make or promise any payment, either directly or indirectly, of money or other assets (“Payment”) to an official of any government, political party or international organization, or to any candidate for political office, or to any person acting on behalf of any of the foregoing (collectively, “Officials”), if such Payment is, or may be construed as being paid, for the purpose of influencing decisions or actions with respect to the subject matter of this Agreement or any other aspect of Agena’s business, or would otherwise constitute a violation of any applicable Laws.
12. Waiver/Severability. Any term or provision of this Agreement may be waived at any time by the party entitled to the benefit thereof by a written instrument executed by such party. No delay on the part of a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of either party of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. If any provision of this Agreement is held invalid or unenforceable, such provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
13. Arbitration/Choice of Law. a) If there is a dispute which cannot be resolved by the parties arising out of or related to this Agreement, or to the parties’ rights under this Agreement, or to the interpretation, application, enforceability or validity thereof, the dispute shall be resolved by binding arbitration in San Diego County, California in accordance with the Rules of the American Arbitration Association. Judgment on the award may be entered in any court having jurisdiction thereof. b) Nothing in this Section shall limit the right of a party to seek or obtain provisional or preliminary relief from a court of competent jurisdiction to (i) compel arbitration in accordance with this Agreement; (ii) obtain orders to require witnesses to obey subpoenas issued by the arbitrators; or (iii) secure confirmation or enforcement of any arbitration award rendered pursuant to this Agreement to arbitrate. c) With respect to sections a) and b), this Agreement shall be governed by and construed in accordance with the substantive law of the State of California without regard to any choice of law principle that would dictate the application of the law of another jurisdiction. Customer and Agena consent to the exclusive jurisdiction of, and venue in, the state and federal courts within San Diego County, California, U.S.A.
14. Assignment. Customer shall not assign or transfer this Agreement or any rights or obligations under this Agreement, whether voluntary, by operation of law or otherwise, without the prior written consent of Agena; provided, however, that no consent shall be required for any assignment in connection with any merger, acquisition or the sale of all or substantially all of the stock or assets of Customer to a party that (i) agrees in writing to be bound by the terms and conditions of this Agreement, and (ii) is not, in Agena’s reasonable judgment, a competitor of Agena. Agena may assign or transfer this agreement to any successor by way of merger, acquisition or sale of all or substantially all of its stock or assets relating to this Agreement. Agena or any successor may assign all or part of the right to payments under this Agreement. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties’ respective successors and permitted assigns.
15. Entirety of Agreement. Other than as expressly set forth herein, no license rights are granted or implied. In the event of a conflict between the terms and conditions of this Agreement and any terms and conditions provided by Customer, or work order, purchase order, billing statement, or invoice related to the purchase, license, or transfer of any Agena products, technology or services, the language of this Agreement shall govern and control, and the conflicting terms, provisions, and conditions of any such other documents shall be deemed null, void, and unenforceable. This Agreement (including the attached Oracle End User License Terms) along with any non-conflicting terms of Customer’s purchase order that are accepted by Agena in writing, represents the entire agreement and understanding of Customer and Agena relating to the subject matter contained herein, including the Pricing and Payment terms of Section 2, and merges all prior discussions and agreements between them, whether oral or written. Except for amendments by Agena to kit names, and product and application names, as may occur from time to time, no amendment, change, modification, waiver or alteration of any terms and conditions herein shall be effective or binding unless in writing and signed by a duly authorized officer of Agena Bioscience, Inc.
ORACLE END USER LICENSE TERMS
Oracle Corporation (“Oracle”) software products
(a) The Customer shall limit its use of Oracle’s products to the scope of the application package and to its business operations;
(b) The Customer shall not transfer Oracle’s products except for temporary transfer in the event of computer malfunction;
(c) The Customer shall not assign Oracle’s products or any interest in Oracle’s products. If a security interest is granted in Oracle’s products, the secured party has no right to use or transfer Oracle’s products;
(d) The Customer shall not operate a timeshare, hosting, subscription service, or rental use of Oracle’s products;
(e) Title to Oracle’s products remains with Oracle and shall not pass to the Customer or to any other party;
(f) The Customer shall not reverse engineer, disassemble or decompile Oracle’s products unless required for interoperability and then only to the extent so required for such interoperability;
(g) The Customer shall not duplicate Oracle’s products except for a sufficient number of copies for the Customer’s licensed use and a single back up or archival copy;
(h) Oracle shall not be liable for any damages whether indirect, incidental, special, punitive, or consequential arising from the use of its products;
(i) Where the license which is granted by Agena in respect of Oracle products expires or terminates and is not renewed, the Customer shall discontinue use and destroy or return all copies of Oracle’s products and documentation to Agena;
(j) The Customer shall not cause to be publicized any results of benchmark tests run on Oracle’s products;
(k) The Customer shall comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the Oracle products themselves nor any direct products thereof are exported, directly or indirectly in violation of applicable laws;
(l) Oracle is not required to perform any obligations other than to the extent agreed by Agena and Oracle;
(m) Agena has the right to audit Customer’s use of Oracle’s products and report such use to Oracle, or to assign such right to another person;
(n) Oracle is a third party beneficiary of these Customer license terms;
(o) The Uniform Computer Information Transactions Act shall not apply; and
(p) To the extent that Oracle source code is included with any application package, such source code is similarly governed by the terms above.