Inscripta Product Terms and Conditions of Sale
Terms and Conditions of Sale — Research Use Products
As of September 2022
1.1 “Analytics” means statistics, metrics and other analyses that are based on or derived from the Products, Services and Orders and other related systems and technologies (including, without limitation, aggregate measurements of Services usage and performance relating to Customer’s and its users use thereof).
1.2 “Cloud-Based Software” means Inscripta-branded software made available to Customer by or on behalf of Inscripta over the internet for use with the Hardware.
1.3 “Confidential Information” has the meaning set forth in Section 8 of these Terms and Conditions.
1.4 “Customer” means the person or entity acquiring or licensing the Product(s) from Inscripta.
1.5 “Customer Data” means any information and data provided by or generated by Customer and its users in connection with all uses of the Products and Services, except for Analytics related thereto.
1.6 “Custom Reagents” means custom Inscripta-branded reagents and other consumable items made by or on behalf of Inscripta to specifications or designs provided by or on behalf of Customer, that are intended to be consumed through usage of the Hardware in accordance with the Documentation.
1.7 “Documentation” means all user manuals, package inserts, and similar technical documentation applicable to the Product, whether made available by or on behalf of Inscripta electronically or otherwise, in effect on the date that the Product ships from Inscripta.
1.8 “Excluded Uses” has the meaning set forth in Section 4.3 of these Terms and Conditions.
1.9 “Hardware” means all Inscripta-branded instruments, accessories, associated parts and modules.
1.10 “Inscripta” means Inscripta and it authorized affiliates. The specific Inscripta entity selling each Product is identified either on the quotation, order acknowledgment or similar communication provided to the Customer or, if the order is being placed electronically via Inscripta’s website, on the website at the time of sale.
1.11 “Order” means (i) an ordering document for a Product or Services mutually agreed upon by the parties and referencing this Agreement as the governing terms, or (ii) the Products or Services selected and ordered by Customer via the Cloud-Based Software.
1.12 “Permitted Uses” has the meaning given in Section 4.1 of these Terms and Conditions.
1.13 “Product” means each item sold, loaned, leased or licensed by Inscripta or its authorized affiliates to Customer, including, without limitation, any Hardware, Reagents, Cloud-Based Software, or Software.
1.14 “Reagents” means Inscripta-branded reagents and other consumable items including instrument modules that are intended by Inscripta to be consumed through usage of the Hardware or used with the Hardware or Software. For purposes of this Agreement, the use of the term “Reagents” shall include Custom Reagents, unless expressly stated otherwise.
1.15 “Professional Services” means professional services provided by Inscripta to Customer as described in any Order, including services related to installation, training, experiment or analysis guidance.
1.16 “Services” means those services provided by Inscripta to Customer hereunder, including the Support Services, Professional Services, and Software Services.
1.17 “Ship-To Location” means the address of the Customer facility designated by Customer at the time of ordering, or to which Inscripta transfers Products on Customer request.
1.18 “Software” means all Inscripta-branded software installed or made available on the Hardware and any updates thereto. Software does not include Cloud-Based Software.
1.19 “Software Services” means Inscripta’s hosting of the Cloud-Based Software, which Inscripta makes available for access and use by Customer hereunder.
1.20 “Specifications” means Inscripta’s written technical specifications for the Product in effect on the date that the Product ships from Inscripta.
1.21 “Support Services” means the applicable support services that Inscripta provides to Customer for the Products, as may be more fully described in these Terms and Conditions or an Order.
2. Products and Services
2.1 Orders. Customer shall order Products and Services via Orders. To the extent that a conflict arises between these Terms and Conditions and an Order, these Terms and Conditions will govern, except to the extent that the Order expressly states that it supersedes specific language in these Terms and Conditions. The terms of Customer purchase orders will not apply.
2.2 Products. Subject to these Terms and Conditions, Customer is granted a non-exclusive, nontransferable, non-sublicensable, personal license to (1) engage in Permitted Uses of the Hardware and Reagents at the Ship-To Location, (2) use Software in conjunction with Customer’s Permitted Uses of Hardware, and (3) access and use Cloud-Based Software in conjunction with Customer’s Permitted Uses of the Hardware, in each case, solely in accordance with these Terms and Conditions and all applicable Documentation. The foregoing license grants shall terminate automatically and without further action of either Inscripta or Customer upon Customer’s failure to comply with these Terms and Conditions.
2.3 Software License. Subject to these Terms and Conditions, Inscripta hereby grants Customer a non-exclusive, non-transferable, right and license, without the right to sublicense, to access and use the Software and the Cloud-Based Software (and to permit its Users to access the Software Services under its Account) through or in conjunction with Customer’s Permitted Uses of the Hardware, in each case, solely in accordance with these Terms and Conditions and all applicable Documentation. All Software and the Cloud-Based Software is licensed to Customer, not sold. Except as expressly stated in Sections 2.2 or 2.3 above or in the non-exclusive license granted under Section 13, no right or license under any intellectual property rights of Inscripta is or are granted, expressly, by implication, or by estoppel, to Customer, and any such rights are expressly reserved to Inscripta. Customer agrees that the contents of and methods of operation of the Products are proprietary to Inscripta and the Products may contain or embody trade secrets or other intellectual property of Inscripta.
2.4 Software Services. Customer will be responsible to provide access to the Software Services for its personnel, partners and customers designated by Customer (“Users”) to administer and use, respectively, the Software Services through a Customer-specific account (“Account”). Each User will have and use a unique identifier to access the Software Services. Customer is solely responsible for maintaining the confidentiality of all Account information (including access credentials) and will be fully liable for any and all activities under its Account. Customer agrees to keep all Account information up-to-date and to notify Inscripta (a) immediately of any unauthorized use of its Account or any other breach of security and (b) promptly of any User who is nonactive for any reason, including withdrawal by Customer of authorization granted to any User to access the Software Services. Except as required by applicable law, Customer will not permit any third party (other than Users) to access or use the Software Services without Inscripta’s prior written consent. Customer will notify Inscripta promptly if (i) any person or entity claims to offer a service or system that “integrates with” Inscripta’s Products or Services or (ii) any claims by a third party that it needs to access or use the Products or Services pursuant to a requirement of law.
2.5 Professional Services. Where the parties have agreed to Inscripta’s provision of Professional Services, the details of such Professional Services will be set out in an Order. The Order will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the fees applicable for the performance of the Professional Services. Each Order will incorporate these Terms and Conditions.
2.6 Support Services. Subject to these Terms and Conditions, Inscripta shall exercise commercially reasonable efforts to provide technical assistance and support to Customer in its use of the Products and Users of the Services during Inscripta’s ordinary and customary business hours in accordance with its standard policies and procedures. Customer shall provide such information and/or access to Customer resources as Inscripta may reasonably require in order to provide Support Services. Inscripta shall be excused from any non-performance of its obligations hereunder to the extent any such non-performance is caused by Customer’s failure to provide such information and/or access.
Customer is solely responsible for determining whether Customer has all rights that are necessary for Customer’s intended uses of any Product.
3. Biosecurity Screening
Customer agrees that, prior to buying any Product from Inscripta, Customer will be required to undergo and pass Inscripta’s screening process for biosecurity and safety. In addition, should Customer use the Products to provide genome engineering services on behalf of a third party, the third party must also undergo and pass Inscripta’s screening for biosecurity and safety prior to the initiation of such services by Customer.
4. Permitted Uses and Restrictions
Customer shall only use Products in accordance with these Terms and Conditions and the Documentation. The conditions and restrictions found in these Terms and Conditions are bargained for conditions of sale of Products, and Customer’s use of Products is expressly subject to these Terms and Conditions.
4.1 Permitted Uses. Customer may use the Products solely to engage in research and development activities, specifically excluding all Excluded Uses (the “Permitted Uses”).
4.2 Reagents. Customer further agrees (i) to use each Reagent only one time, and (ii) to use only Reagents with the Hardware unless the Documentation for the Product expressly states otherwise.
4.3 Excluded Uses. Customer will not:
(a) use, or permit the use of, any Product to perform editing of a human embryo;
(b) use, or permit the use of, any Product as, or as a component of, any in vitro diagnostic device, or for any other diagnostic purpose or application;
(c) use, or permit the use of, any Product to perform testing of human samples and specimens where results are reported, directly or indirectly, to a patient or healthcare practitioner;
(d) use, or permit the use of, any Product for purposes of manufacturing, or for providing for clinical use, a human or veterinary product that requires regulatory approval of the Product or of the human or veterinary product;
(e) use any Product (or information generated from the use of the Product) that is either prohibited by applicable law or regulation, or contrary to ethical guidelines promulgated by established national and/or international ethical bodies (whether governmental or nongovernmental);
(f) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any protection mechanisms in any Product, including, without limitation, any such mechanism used to restrict or control the functionality of the Software, or otherwise tamper with any Product;
(g) permit anyone to service or adjust any Product other than Inscripta’s authorized representatives or as expressly contemplated in the Documentation;
(h) make any modifications, alterations, or additions to any Product;
(i) copy, reverse engineer (other than to the extent required to be permitted under applicable law), decompile, disassemble or modify any Product or create derivative works of any Product;
(j) market, distribute, resell, rent, lease, loan, or export any Product for any purpose;
(k) relocate any Product, or use any Product at any location other than the Ship-To Location;
(l) pledge, assign, transfer, sell, rent, lease, loan, timeshare, distribute, license or sublicense any Product to any third party;
(m) remove or tamper with any the trademarks, trade names, logos, patent or copyright notices or markings affixed to any Product, or add any other notices or markings to any Product;
(n) use any Product for any purpose other than that for which it was designed; or
(o) download, install, or use any software on Hardware that has not been authorized in writing by Inscripta.
(a‑o, collectively, the “Excluded Uses”).
4.4 Systems. As between the parties, Customer is solely responsible for (a) the network and communications systems and services needed to access and use the Cloud-Based Software, including the Software Services, and (b) backup, recovery, network security and maintenance services for its systems. Customer is responsible for backing-up and otherwise protecting all Customer Data and uploading, downloading or transmitting any data via the Cloud-Based Software, including the Software Services.
4.5 Compliance. Customer shall ensure that each of its Users comply with all obligations of Customer under these Terms and Conditions and under applicable law. Any breach of any such obligations shall be deemed a material breach by Customer of these Terms and Conditions, and Customer shall be responsible and liable for any such breach by any User. Inscripta may revoke credentials to the Software Services if a User breaches any obligations of Customer, and Inscripta may suspend Customer’s access to the Cloud-Based Software if Inscripta reasonably suspects that a User has breached any obligations of Customer.
5.1 Research Use Only. The Products are labeled “For Research Use Only” or similar labeling statement and is not for use in diagnostic procedures or for therapeutic purposes. Customer acknowledges that (a) the Product has not been approved, cleared, or licensed by the United States Food and Drug Administration or any other regulatory entity, whether foreign or domestic, for any specific intended use, including without limitation any research, commercial, diagnostic, therapeutic or other use, and (b) Customer is solely responsible for obtaining all regulatory approvals required by applicable law or regulation necessary for Customer’s intended uses of the Product.
5.2 Compliance with Law. The Products may only be used in a lawful and ethical manner. Customer agrees to comply with all applicable laws and regulations and all ethical guidelines promulgated by established national and/or international ethical bodies when using, maintaining, and disposing of the Products and the information generated from the use of the Products.
5.3 Customer Data. Customer represents and warrants to Inscripta that (i) the access, transfer, collection, processing, distribution and use of Customer Data as described in these Terms and Conditions will not violate any applicable law, regulation or proprietary right, and (ii) its use of the Services complies with all applicable laws, rules and regulations.
6. Customer Data
6.1 Customer Data is, as between Inscripta and Customer, the property of Customer. Customer, on behalf of itself and its Users, grants Inscripta a non-exclusive, worldwide, royalty-free and fully paid right and license to access, copy, store, process, distribute, transmit, display, and otherwise use the Customer Data as necessary for purposes of providing and improving the Products and/or Services to Customer and its Users, and otherwise as necessary to perform its obligations hereunder.
6.2 Notwithstanding anything to the contrary herein, Customer (on behalf of itself and its Users) acknowledges and agrees that Inscripta shall have the right to: (a) collect, use, and analyze Analytics, and Inscripta shall be free (during and after the term of these Terms and Conditions) to (i) use Analytics to improve and enhance the Products and/or Services and for other development, diagnostic, and corrective purposes in connection with its business, and (ii) use, disclose and commercially exploit Analytics in aggregate or other de-identified form in connection with its business; (b) use Customer Data for Inscripta’s internal business purposes, including without limitation, product improvements (provided that Customer Data shall not be shared with any Inscripta affiliates or other third parties without Customer’s prior written permission); (c) de-identify Customer Data and use, disclose and commercially exploit such de-identified Customer Data in connection with its business; (d) use Customer Data to protect the rights, property or safety of Inscripta or others or to investigate or enforce suspected breaches of these Terms and Conditions; and (e) use Customer Data as otherwise provided in these Terms and Conditions or as otherwise mutually agreed upon by the parties.
7. Intellectual Property
7.1 Customer agrees that the contents of and methods of operation of the Products are proprietary to Inscripta and its affiliates, and the Products contain or embody trade secrets or other intellectual property of Inscripta and its affiliates.
7.2 Except as expressly stated in Section Error! Reference source not found. above or in the nonexclusive license granted under Section 13 below, no right or license under any intellectual property rights of Inscripta or Inscripta’s affiliates is or are granted, expressly, by implication, or by estoppel, to Customer, and any such rights are expressly reserved to Inscripta and its affiliates.
7.3 Customer grants to Inscripta a non-exclusive, fully paid-up, royalty-free, worldwide, irrevocable, perpetual right and license, with the right to sublicense, to use and commercialize in any manner suggestions, ideas or comments provided by Customer to Inscripta related to the Products and/or Services.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Inscripta includes the Products and the Services, and the terms and conditions of this Agreement and all Order Forms (including pricing). Any Confidential Information disclosed to the Receiving Party (a) will not be used by the Receiving Party for any purpose other than the performance of its obligations or exercise of its rights in accordance with these Terms and Conditions; (b) will be protected from unauthorized use or disclosure by the Receiving Party with the same care as it would exercise in the handling of its own confidential or proprietary information, but not less than reasonable care; and (c) will not be disclosed by the Receiving Party to any third party without the Disclosing Party’s prior written consent. Notwithstanding the foregoing, the Receiving Party may use or disclose any material or information from and after the date that it can demonstrate such material or information (i) is or becomes publicly known through no act or fault of the Receiving Party; (ii) is developed independently by the Receiving Party without access to or knowledge of the Disclosing Party’s Confidential Information; (iii) is known by the Receiving Party when disclosed by the Disclosing Party if the Receiving Party does not then have a duty to maintain its confidentiality; or (iv) is rightfully obtained by the Receiving Party from a third party not obligated to preserve its confidentiality. The Receiving Party may also disclose the Disclosing Party’s Confidential Information to the extent required by a court or other governmental authority, provided that the Receiving Party (x) gives the Disclosing Party prompt written notice of the disclosure; (y) uses reasonable efforts to resist disclosing the Confidential Information; and (z) cooperates with the Disclosing Party on request to obtain a protective order or otherwise limit the disclosure. Upon the Disclosing Party’s request at any time, Customer shall return all of the Disclosing Party’s Confidential Information in its possession or under its control in accordance with the Disclosing Party’s directions and shall not thereafter retain any copies of the Disclosing Party’s Confidential Information.
9. Limitation of Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, INSCRIPTA’S TOTAL AND CUMULATIVE LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE PRODUCTS (INCLUDING, WITHOUT LIMITATION, THE USE THEREOF) AND INSCRIPTA’S PERFORMANCE, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL IN NO EVENT EXCEED THE AMOUNT PAID TO INSCRIPTA FOR THE PARTICULAR PRODUCT CONTAINED IN THE PARTICULAR ORDER UNDER WHICH THE CLAIM AROSE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INSCRIPTA BE LIABLE TO CUSTOMER OR ANY THIRD PARTY HEREUNDER FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, COSTS OF LOST DATA OR BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THIS AGREEMENT.
10. Product Warranty
All warranties hereunder are personal to the Customer and may not be assigned or otherwise transferred to a third-party, including, without limitation, an affiliate of Customer. All warranties are specific to the original Ship-To Location and do not transfer of the Product is moved to another facility of Purchaser, unless Inscripta performs or approves such move.
10.1 Warranty for Hardware. Inscripta warrants to Customer that the Hardware will conform in all material respects with the Specifications for a period of twelve (12) months after the date of shipment from Inscripta to Customer, provided, that if the Hardware includes Inscripta-provided installation, the warranty period shall commence on the date of installation or thirty (30) days after the date the Hardware was delivered, whichever occurs first. Inscripta will, at its option, repair or replace non-conforming Hardware with functionally equivalent, reconditioned, or new Hardware or components (if only a component of the Hardware is nonconforming), provided that Inscripta can reasonably identify and confirm the nonconformance. If the Hardware is replaced in its entirety, the warranty period for the replacement is ninety (90) days after the date of shipment or the remaining period on the original Hardware warranty, whichever is later. If only a component is repaired or replaced, the warranty period for such component is ninety (90) days after the date of shipment or the remaining period on the original Hardware warranty, whichever is later. The preceding states Customer’s sole and exclusive remedy and Inscripta’s sole obligations under the foregoing warranty and is subject to certain exclusions set forth in Section 10.6 below.
10.2 Warranty for Reagents. Inscripta warrants to Customer that the Reagents (other than Custom Reagents) will conform in all material respects with the Specifications until the later of (i) ninety (90) days after the date of shipment from Inscripta to Customer, or (ii) the expiration or end of shelf-life date pre-printed on the Reagents, but in either event, no later than twelve (12) months after the date of shipment. With respect to Custom Reagents, Inscripta warrants to Customer for a period of ninety (90) days after the date of shipment from Inscripta that the Custom Reagents were made and tested in accordance with Inscripta’s standard manufacturing and quality control processes, and Inscripta makes no warranty that Custom Reagents will work as intended by Customer or for Customer’s intended uses. Inscripta will replace non-conforming Reagents with new Reagents, provided that Inscripta can reasonably identify and confirm the nonconformance. The warranty period for replaced Reagents is ninety (90) days after the date of shipment, or the remaining period on the original Reagents warranty, whichever
is later. The preceding states Customer’s sole and exclusive remedy and Inscripta’s sole obligations for any breach of the foregoing warranty and is subject to certain exclusions set forth in Section 10.6 below.
10.3 Warranty for Software. Inscripta warrants to Customer that the Software will, when used in accordance with the Documentation for the Software, perform substantially in conformance with the Specifications for a period of twelve (12) months after Customer’s receipt of the Hardware. Should any material non-conformity arise within the twelve (12)-month warranty period, Inscripta will use commercially reasonable efforts to promptly resolve any such non-conformity in the Software at no cost to Customer. Inscripta does not warrant that Customer’s use of the Software will be uninterrupted or error free, or that any particular nonconformity will be corrected, or a workaround provided, within any particular time frame. The foregoing states Customer’s sole and exclusive remedy and Inscripta’s sole obligations for any breach of the foregoing warranty and is subject to certain exclusions set forth in Section 10.6 below.
10.4 Warranty for Cloud-Based Software. Inscripta warrants to Customer that the Cloud-Based Software will, when used in accordance with the Documentation for the Cloud-Based Software, perform in all material respects with the Specifications in the then current Documentation. Should any material non-conformity arise during the term of these Terms and Conditions, Inscripta will use commercially reasonable efforts to promptly resolve any such non-conformity in the Cloud-Based Software at no cost to Customer. Inscripta does not warrant that Customer’s use of the Cloud-Based Software will be uninterrupted or error free, or that any particular non-conformity will be corrected, or a workaround provided, within any particular time frame. The foregoing states Customer’s sole and exclusive remedy and Inscripta’s sole obligations for any breach of the foregoing warranty and is subject to certain exclusions set forth in Section 10.6 below.
10.5 Warranty for Support Services. Inscripta warrants to Customer that it will perform the Support Services in a professional manner, employing a standard of care, skill and diligence consistent with industry standards. Inscripta’s entire obligation and Customer’s sole and exclusive remedy for a breach of the foregoing warranty will be for Inscripta to re-perform correct any non-conformity in the Support Services, subject to the certain exceptions set forth in Section 10.6 below.
10.6 Exclusions from Warranty Coverage. The foregoing warranties do not apply to the extent any non-conformance is due to (i) abuse, misuse, neglect, negligence, accident, improper storage, or use contrary to these Terms and Conditions or the Specifications or Documentation for the Product, (ii) use that is an Excluded Use, (iii) improper handling, installation, maintenance, or repair (other than if performed by Inscripta’s authorized personnel), (iv) unauthorized alterations or modifications, (v) Force Majeure events, (vi) relocating the Product without Inscripta’s prior approval and assistance; or (vi) use with any third party products, materials, or services (unless the Specifications or Documentation for the Product expressly state that such third party products, materials or services may be used with the Product).
10.7 Procedure for Warranty Coverage. In order to be eligible for warranty repair or replacement hereunder, Customer must (i) promptly contact Inscripta’s support department at firstname.lastname@example.org during the applicable warranty period to report the nonconformance, (ii) cooperate with Inscripta in confirming or diagnosing the nonconformance, and (iii) return the Product, transportation charges prepaid to Inscripta following Inscripta’s instructions or, if agreed by Inscripta and Customer, grant Inscripta’s authorized repair personnel
access to the Product in order to confirm the nonconformance and make repairs or replacements.
10.8 Disclaimers on Warranties. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE INSCRIPTA PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT WITH RESPECT TO THE EXPRESS
PRODUCT WARRANTIES MADE IN THESE TERMS AND CONDITIONS, INSCRIPTA MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PRODUCTS AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR
TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INSCRIPTA MAKES NO CLAIM, REPRESENTATION, OR WARRANTY OF ANY KIND AS TO THE UTILITY OF THE PRODUCT FOR CUSTOMER’S INTENDED USES OR WITH RESPECT TO THE RESULTS OBTAINED
THROUGH THE USE OF THE PRODUCT. INSCRIPTA, ITS AFFILIATES, THEIR RESPECTIVE NONAFFILIATE COLLABORATORS AND DEVELOPMENT PARTNERS THAT CONTRIBUTED TO THE
DEVELOPMENT OF THE PRODUCT, CONTRACTORS, LICENSORS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND REPRESENTATIVES HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED.
11.1 Indemnification by Inscripta. Subject to these Terms and Conditions, including, without limitation, Sections 11.2 and 11.4 below, Inscripta shall defend, indemnify and hold harmless Customer against any third-party claim or action alleging that a Product (with the exception of Custom Reagents or the use of any specific enzymes), when used in accordance with these Terms and Conditions, infringes the valid and enforceable patents of a third party. If the Product or any part thereof, becomes, or in Inscripta’s opinion may become, the subject of an infringement claim, Inscripta shall have the right, at its sole discretion, to (A) procure for Customer the right to continue using the Product, (B) modify or replace the Product with a substantially equivalent noninfringing substitute, or (c) require the return of the Product and terminate the rights, license, and any other permissions provided to Customer with respect the Product and refund to Customer the depreciated value (as shown in Customer’s official records) of the returned Product at the time of such return; provided, that no refund will be given for used-up or expired Reagents. This Section states the entire liability of Inscripta regarding any
infringement of third-party patents.
11.2 Exclusions to Inscripta Indemnification Obligations. Inscripta has no obligation to defend, indemnify or hold harmless Customer for any third party claim under Section 11.1 above to the extent such claim arises from: (i) Customer’s breach of this Agreement, including without limitation, use of the Product in any manner for any Excluded Use or use of the Product in any manner not in accordance with the rights or other permissions expressly granted to Customer under these Terms and Conditions, (ii) use of the Product in combination with any third party products, materials or services (unless the Product’s Specifications or Documentation expressly state such third party’s products, materials or services are for use with the Product), (iii)
use of the Product to perform any assay or other process not supplied by Inscripta, (iv) Inscripta’s compliance with specifications or instructions for Custom Reagents furnished by, or on behalf of, Customer, or (v) use of any third party products, materials, or services that may be acquired or used with the Products (each of (i) – (v), is referred to as an ”Excluded Claim”).
11.3 Indemnification by Customer. Customer shall defend, indemnify and hold harmless Inscripta, its affiliates, their respective non-affiliate collaborators and development partners that contributed to the development of the Product, and their respective officers, directors, employees, agents and representatives against any claims, liabilities, damages, fines, penalties, causes of action, and losses of any and every kind (including, without limitation, reasonable attorneys’ fees), including without limitation, personal injury or death claims, resulting from, relating to, or arising out of (i) any Excluded Claim, (ii) any use of the Product by Customer which involves the use of or creation of materials that infringe a third party’s intellectual property rights, (iii) Customer’s negligence, willful or intentional misconduct, or (iv) Customer Data.
11.4 Conditions to Indemnification Obligations. The parties’ indemnification obligations are conditioned upon the party seeking indemnification (i) promptly notifying the indemnifying party in writing of such claim or action, (ii) giving the indemnifying party exclusive control and authority over the defense and settlement of such claim or action, (iii) not admitting infringement of any intellectual property right without prior written consent of the indemnifying party, (iv) not entering into any settlement or compromise of any such claim or action without the indemnifying party’s prior written consent, and (v) providing reasonable assistance to the indemnifying party in the defense of the claim or action; provided, that the indemnifying party reimburses the indemnified party for its reasonable out-of-pocket expenses incurred in providing such assistance.
12. Payment Terms
12.1 Inscripta will invoice Customer upon shipment of the Product. After Inscripta’s credit review of Customer, Inscripta shall inform Customer of applicable payment terms. Customer shall pay all invoiced amounts in accordance with such payment terms, but no later than within thirty (30) days of the date of the applicable invoice, in the currency stated in the invoice.
12.2 If payment is made by wire or other electronic funds transfer, Customer is solely responsible for any bank or other fees charged and will reimburse Inscripta for any such fees. If any payment is not made by the due date, Inscripta may exercise all rights and remedies available by law. Customer shall pay for all costs (including, including, without limitation, reasonable attorneys’ fees) incurred by Inscripta in connection with the collection of late payments. Any amounts not paid when due will accrue interest at the rate of 1.5% per month, or the maximum amount allowed by law, if lower.
12.3 Each Order is a separate, independent transaction, and Customer has no right of set-off against other Orders or other transactions with Inscripta. Inscripta will determine payment terms on a per-Order basis and may modify credit terms in its discretion.
13. MAD7® Nuclease License
Subject to Customer’s compliance with these Terms and Conditions, Inscripta hereby grants to Customer a nonexclusive, non-transferable, non-sublicensable, personal license under U.S. Patent No. 9,982,279, U.S. Patent No. 10,337,028, and applications claiming priority therefrom, including continuations, divisionals, and foreign counterparts to use Inscripta’s proprietary enzyme, the MAD7 nuclease, solely in connection with Customer’s use of the Products (e.g., Hardware or Reagents) for the Permitted Uses, during the term of this Agreement, at no additional charge.
14. Shipping Terms; Title and Risk of Loss
14.1 Unless otherwise set forth in writing by Inscripta or otherwise agreed between the parties, all shipments of Product are made DAP (Incoterms 2020) to the Ship-To Location and Customer is responsible for freight and insurance which will be added to the invoice and paid by Customer. In all cases, title and risk of loss to Hardware and Reagents transfers to Customer when Product is made available at such address. For clarity, title to Software, Cloud-Based Software and any third-party software is retained by Inscripta or the applicable third
14.2 Immediately upon Customer’s receipt of any Product shipped hereunder, Customer shall inspect the same and will notify Inscripta in writing of any claims for shortage, defects, or damages and shall hold the Product for Inscripta’s written instructions concerning disposition. If Customer fails to so notify Inscripta within five (5) days after the Product has been received by Customer, such Product shall conclusively be deemed accepted by Customer. Acceptance of any Product shall not void any warranties expressly provided herein.
Customer agrees that any applicable sales, use, excise, VAT (value added tax), GST (goods and services tax), withholding and other taxes will be calculated based on both the tax rates in effect on the date of shipment and the Ship-To Location for the Product. Any amounts for tax listed on a quotation, if any, are for reference purposes only and are not binding on Inscripta. All prices and other amounts payable to Inscripta are exclusive of and are payable without deduction for any taxes, customs duties, tariffs or charges hereafter claimed or imposed by any governmental authority upon the sale of Product, all of which will be paid by Customer. In the event Inscripta is required by law or regulation to pay any such tax, duty or charge, such amount will be added to the purchase price or subsequently invoiced to the Customer.
16.1 Applicability of Terms and Conditions. These Terms and Conditions exclusively govern the ordering, purchase, supply, and use of the Products and/or Services, and override any conflicting, amending and/or additional terms contained in any purchase orders, invoices, or similar documents, all of which are hereby rejected and are null and void. Inscripta’s failure to object to any such terms and conditions shall not constitute a waiver by Inscripta, nor constitute acceptance by Inscripta of such terms and conditions. Third party products may be subject to additional terms and conditions of the third party.
16.2 Order Changes/Cancellations. Orders for Products may not be changed or cancelled once placed.
16.3 Governing Law. These Terms and Conditions, their interpretation, and the performance of the parties shall be governed by the laws of the State of California, U.S.A, without reference to the conflict of law rules thereof. Inscripta and Customer agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions or any terms and conditions in the Documentation. Except for any arbitration conducted pursuant to Section 16.4, exclusive jurisdiction and venue for actions related to these Terms and Conditions will be the state or federal courts located in San Francisco, California, and both parties’ consent to the jurisdiction of such courts with respect to any such action.
16.4 Arbitration. In Inscripta’s sole discretion, any dispute, claim or controversy arising out of or relating to these Terms and Conditions, shall be determined by confidential binding arbitration before three (3) arbitrators and conducted in the English language, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and the laws of California without regard to its principles of conflict of laws in San Francisco, California. Within seven (7) calendar days of either party making demand for arbitration, Inscripta and Customer shall each select one (1) arbitrator. A third arbitrator shall be selected by the arbitrators selected by the parties within thirty (30) days of the demand for arbitration. In the event that either party shall fail to appoint its arbitrator, or the two (2) arbitrators selected by the parties fail to appoint the third arbitrator, in either case within the prescribed time period, then either Party may apply to the AAA for the appointment of such arbitrator. Each party shall pay for the arbitrator it selects with the fees and expenses of the third arbitrator being split equally between the parties. All other costs and expenses shall also be split equally between the parties. Neither party nor an arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless required by applicable law. The determination of a majority of the panel of arbitrators shall be the decision of the arbitrators and shall be final and binding on the parties, provided, that the arbitrator shall not have the authority to alter any explicit provision of these Terms and Conditions. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking temporary injunctive relief or other provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
16.5 Termination. These Terms and Conditions may be terminated by either party if the other party breaches any material provision of these Terms and Conditions and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) after receiving written notice of such breach from the nonbreaching party. Upon any termination of these Terms and Conditions, all rights, obligations and licenses of the parties shall cease, except that (a) Customer will immediately pay to Inscripta any outstanding balance of fees due by Customer to Inscripta; (b) Customer will cease all use of the Services and Products; and (c) all obligations that accrued prior to the effective date of termination, all remedies for any breach of these Terms and Conditions and the provisions of Sections 1, 4, 5, 6,7, 8, 9, 10.7, 11, 12, 15 and 16 shall survive. Except as otherwise specifically set forth in these Terms and Conditions, termination is not the sole remedy and, whether or not termination takes effect, all other remedies remain available except as otherwise expressly limited herein.
16.6 General Representations and Warranties. Customer represents and warrants to Inscripta that: (i) it is acquiring the Product for its own internal use, (ii) it is not purchasing the Product on behalf of a third party, (iii) it is not purchasing the Product in order to resell or distribute the Product to a third party, (iv) it is not purchasing the Product in order to export the Product from the country in which Inscripta shipped the Product pursuant to the ship-to address designated by Customer at the time of ordering (“Ship-To Country”), and (v) it will not export the Product out of the Ship-To Country.
16.7 Remedies for Breach. In addition to any remedies specified elsewhere, and any remedies available to Inscripta under law or in equity, in the event Customer breaches these Terms and Conditions, Inscripta may do any, all, or any combination of the following: (i) cease performance, including, without limitation, cease further shipments of Product, (ii) terminate the rights, license and other permissions granted to Customer pursuant to Section 2, (iii) terminate any service contracts then in effect for the affected Product, (iv) terminate any remaining Product warranty for the affected Product, or (v) require Customer to immediately pay any unpaid invoices.
16.8 Future Products. Any future Inscripta products and/or services (“Unreleased Products”) are subject to new part numbers, pricing, documentation, and specifications and Customer’s acquisition of Product hereunder is not in reliance on the availability of any Unreleased Products.
16.9 Inscripta Affiliates. Any actions or rights that may be performed or exercised by Inscripta may be performed or exercised by Inscripta or by any of its affiliates. By way of non-limiting example, Inscripta’s affiliates may carry out shipment, servicing, invoicing and receipt of payment.
16.10 Force Majeure. Inscripta is not responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including, but not limited to, acts of God, fire, flood, tornado, earthquake, hurricane, lightning, government actions, epidemics or pandemics, quarantine, actual or threatened acts of war, terrorism, civil disturbance or insurrection, sabotage, labor shortages or disputes, failure or delay in delivery by Inscripta’s suppliers or subcontractors, transportation difficulties, shortage of energy, raw
materials or equipment, or Customer’s fault or negligence. In the event of any such delay the delivery date shall be deferred for a period equal to the time lost by reason of the delay.
16.11 Notices. Any notice required or permitted by these Terms and Conditions shall be in writing and shall be deemed received when (i) delivered personally; (ii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid (or ten (10) days for international mail); or (iii) one (1) day after deposit with a commercial express courier that provides written verification of receipt.
16.12 Export Compliance. The Products, any related technology, or information provided to Customer may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder (or the export regulations and laws of another country). Notwithstanding anything to the contrary in these Terms and Conditions, Customer agrees not to use the Products in, or export or re-export the Products, any related technology, or information provided to Customer into, any country or to any person or entity, or in any manner, in violation of such restrictions, controls or regulations or any other laws, rules or regulations of any country, state or jurisdiction.
16.13 Healthcare Law Compliance. Customer acknowledges and agrees that Inscripta and Inscripta’s affiliates may be required by applicable law or regulation to disclose the existence of these Terms and Conditions, including, without limitation, financial terms, and the subject matter (e.g., the U.S. Sunshine Act, and state and foreign equivalents). Inscripta agrees it, and its affiliates, will use commercially reasonable efforts to disclose the least amount of information as possible in order to comply with such applicable laws and regulations.
16.14 Publicity. Customer agrees that it shall not issue any press release or make any public statement regarding acquisition of the Products and/or Services or a contractual relationship of the parties, without prior written approval from Inscripta, which approval shall not be unreasonably withheld or delayed.
16.15 Miscellaneous. Inscripta may cease performance (including, without limitation, cancellation of any order outstanding) immediately without liability to Customer if Customer becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors. These Terms and Conditions represent the entire agreement between the parties regarding the subject matter hereof and supersede all prior discussions, communications, agreements, and
understandings of any kind between the parties. No amendment to these Terms and Conditions or waiver of any right, condition, or breach will be effective unless made in a writing signed by both parties. If any provision is held invalid or unenforceable, such provision shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the remaining terms will continue in full force and effect. The failure of either party to exercise any right granted herein or to require any performance of any term or the waiver by either party of any breach shall not prevent a subsequent exercise or enforcement of, or be deemed a waiver of any subsequent breach of, the same or any other term. Nothing herein shall constitute or create a joint venture, partnership, or any other similar arrangement between the parties. There are no third-party beneficiaries to these terms and conditions. These Terms and Conditions may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. These Terms and Conditions and the rights and obligations hereunder may not be assigned, in whole or in part, by Customer without Inscripta’s written consent. These Terms and Conditions are binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.